R E F L E T S Brief Information on Legal Developments of Community Interest

Library, Documentation and No. 1/2010 Research Directorate R E F L E T S Brief information on legal developments of Community interest

Contents organisations ...... - 26 - A. Case law ...... - 1 Human Rights Committee ...... - 26 - - World Trade Organisation…………. - 27 - I. European and international courts.... - 1 C. National legislation...... - 28 - - Germany ...... - 28 - European Court of Human Rights...... - 1 - Belgium ...... - 28 - Permanent Review Court of MERCOSUR .... - 4 Lithuania ...... - 29 - - Romania ...... - 30 - United Kingdom ...... - 30 II. National courts ...... - 4 - Sweden ...... - 31 1. Member States ...... - 4 - D. Extracts from legal literature - 32- Germany ...... - 4 E. Brief summaries ...... - 35 - - Belgium ...... - 7 - Finland ...... - 8 The publication Reflets is available on Curia - (http://curia.europa.eu) under Library and documentation/Legal France ...... - 9 information of European Union interest/“Reflets” and on the - intranet of the Research and Documentation department. Ireland ...... - 11 - Italy ...... - 13 - A. Case law Malta ...... - 14 - I. European and international courts The Netherlands ...... - 15 - Poland ...... - 17 European Court of Human Rights - Czech Republic ...... - 18 - European Convention on Human Rights – Romania ...... - 20 Right to a fair trial – Applicability of - Article 6(1) of the Convention to interim United Kingdom ...... - 22 interdict proceedings – New approach by the - ECHR – Inalienability of Article 6 2. Non-EU countries ...... - 24 requirements concerning the independence - and impartiality of the court – Close family Russia ...... - 24 relationship between the judge and the - Switzerland ...... - 25 respondent’s lawyer in interdict proceedings - – Violation of Article 6(1) of the Convention B. Practice of international

Reflets no. 1/2010 A. Case law

On 15 October 2009, the Grand Chamber of In the main proceedings, the sister of the the European Court of Human Rights issued a appellant, Ms M., had been taken to civil court judgment in the Micallef v. Malta case, in by her neighbour over a neighbourly dispute. which it concluded by eleven votes to six that Her neighbour had obtained an interdict Article 6(1) of the Convention (the right to a restraining Ms M. from hanging clothes out to fair trial) had been violated in that the dry over the courtyard of his apartment. Ms M. requirement for impartiality had not been met complained that in the appeal proceedings in interim interdict proceedings against the interdict, the Chief Justice was not . impartial because he was the brother and uncle, respectively, of the lawyers who had assisted Under the former case law of the ECHR, the neighbour. After Ms M.’s death, her preliminary proceedings, such as those leading brother lodged an appeal with the ECHR. to the adoption of an interim measure like an interdict, did not usually incur the protection set As regards the admissibility of the appeal, the out in Article 6 of the Convention. However, the ECHR found that the appellant could be ECHR found that there is currently a viewed as a victim in this case since, on the widespread consensus among the Member one hand, he had to pay the costs of the States of the Council of Europe that Article 6 proceedings launched by his sister and, on the should apply to interim measures, given that the other hand, the case deals with issues related Member States implicitly or explicitly provide to proper administration of justice and was for such protection. Furthermore, the ECHR thus a matter of general interest. The appellant held that similar protection is provided in the therefore had sufficient interest in the case to case law of the Court of Justice of the European lodge an appeal. Furthermore, the ECHR held Communities, which requires that interim that the case in question dealt with a civil right, measures respect guarantees relating to a fair meaning that Article 6was applicable. As for trial, particularly the right to be heard (judgment the merits of the case, the ECHR found that of 21 May 1980, Bernard Denilauler v. SNC the appellant’s fears concerning the Couchet Frères, 125/79, Rec. p. 1553, see also impartiality of the court were objectively Article 47 of the Charter of Fundamental Rights justified, given the close family relationship of the European Union). between the respondent’s lawyer and the Chief Justice, so Article 6(1) of the Convention had The ECHR reasoned that since many states been violated. face “considerable backlogs in their overburdened justice systems leading to European Court of Human Rights, judgment of excessively long proceedings, a judge's 15 October 2009, Micallef v. Malta decision on an injunction will often be (application no. 17056/06) tantamount to a decision on the merits of the www.echr.coe.int/echr claim for a substantial period of time, even permanently in exceptional cases. It follows IA/32459-A [TLA] that, frequently, interim and main proceedings decide the same ‘civil rights or obligations’ and have the same resulting long lasting or - - - - - permanent effects” (no. 79).

The ECHR therefore decided that it would be European Convention on Human Rights - appropriate to change its case law and found Nulla poena sine lege – Right to a fair trial - that Article 6 should apply if the right in Principle of the retroactive application of the question is ‘civil in nature’ and if the interim more lenient penalty – New approach for the measure is determinative of the civil right at ECHR – Person standing trial for murder –Trial stake. However, in some exceptional cases, under summary procedure, with the consent of such as when the effectiveness of the interim the accused, entailing a reduced sentence – Life measure depends on a quick decision-making imprisonment replaced by 30 years’ process, it may not be possible to comply with imprisonment after the offences were all of the requirements of Article 6. committed – Reduced sentence subsequently Nonetheless, the ECHR finds that the independence and impartiality of the court are inalienable guarantees.

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withdrawn – Sentencing to life imprisonment When the offences were committed, it was not – Violation of Articles 6 and 7 of the yet possible to reduce a sentence of life Convention imprisonment, but during preliminary investigations, a law came into force according In its judgment of 17 September 2009 on the to which a sentence of 30 years’ imprisonment case Scoppola v. Italy, the Grand Chamber of could substitute for a sentence of life the European Court of Human Rights imprisonment where the defendant was tried concluded by eleven votes to six that it would under summary procedure. The appellant was amend its case law on Article 7 of the originally sentenced 30 years’ imprisonment. European Convention on Human Rights (no Yet according to a decree law that came into penalty without law). The Court henceforth force on the day the verdict was delivered, trial holds that Article 7 of the Convention under summary procedure could only result in a guarantees not only the principle of sentence of life imprisonment with daytime non-retrospectiveness of more stringent isolation being reduced to a sentence of criminal laws, but also, implicitly, the principle ordinary life imprisonment. In the end, the of retroactive application of the more lenient appellant was sentenced to life imprisonment criminal law. “That principle is embodied in following the cassation of the original decision. the rule that where there are differences between the criminal law in force at the time of The Court ruled that in light of the above, the the commission of the offence and subsequent respondent State had not met its obligation to criminal laws enacted before a final judgment allow the appellant to take advantage of the is rendered, the courts must apply the law provision for a more lenient penalty that entered whose provisions are most favourable to the into force after the offences were committed. defendant” (no. 109). Consequently, the ECHR decided that Article 7.1 of the Convention had been violated The ECHR found that a consensus has emerged in the case in point. at European and international level around the view that application of a criminal law Furthermore, the ECHR unanimously providing for a more lenient penalty, even one concluded that Article 6 had been violated. enacted after the offence was committed, has The Court found that State parties were under become a fundamental principle of criminal law. no obligation to adopt simplified procedures, In light of this, the ECHR referred to various but that where such procedures existed, it sources including the Charter of Fundamental would be contrary to the principle of legal Rights of the European Union and the case law certainty and the protection of the legitimate of the European Court of Justice on the trust of persons engaged in judicial Berlusconi case (judgment of 3 May 2005, proceedings for a State to be able to reduce 387/02, Rec. p. I-3565), which was endorsed by unilaterally the advantages attached to the the French Court of Cassation (judgment of waiver of certain rights inherent in the concept 19 September 2007, dismissal of appeal no. of fair trial (no. 139). 06-85899). European Court of Human Rights, judgment of However, a minority of judges deemed the 17 September 2009, Scoppola v. Italy (no. 2) new interpretation of Article 7 to have (application no. 10249/03) exceeded the limits set by the Convention’s www.echr.coe.int/echr wording. They felt that the majority had had Article 7 rewritten “in order to accord with IA/32460-A what they consider it ought to have been”. [TLA] In the Scoppola case, the appellant had, during an argument with his children, killed his wife and injured one of his children. At the beginning of the criminal proceedings, the appellant had chosen to be tried under summary proceedings, which entailed a reduction of sentence in the event of conviction. However, the legislation allowing for a reduction of sentence had been amended.

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Permanent Review Court of Furthermore, the TPR underlined that it would MERCOSUR be able to rule on the compatibility of a national legal provision with MERCOSUR law, but that it fell to the relevant national MERCOSUR – Integration law- Primacy - court to rule on the constitutionality, Conditions applicability or nullity of that provision.

In April 2009, the Permanent Review Court of Tribunal Permanente de Revisión, Advisory MERCOSUR (hereafter referred to by its opinion no. 1/2008of 24 September 2009 abbreviation in Spanish, TPR) issued its www.mercosur.int preliminary second advisory opinion on the interpretation of MERCOSUR law. IA/32069-A [AGT] The questions, which were linked to a tax-related case, were asked by the Supreme II. National courts Court of Uruguay. This Court asked, firstly, whether MERCOSUR law takes precedence over the internal provisions of a State party 1. Member States and, secondly, whether the provision in Uruguayan law establishing the disputed tax measure was compatible with the Treaty of Germany Asunción, particularly Article 1 thereof, which relates to free movement within the common Competition - Cartels – Adverse effects on market. competition – Long-term gas supply contract between a company transporting gas over We should reiterate that the issue of primacy great distances and local or regional was already raised in the first advisory opinion companies – Market isolation resulting from (see Reflets no. 1/2008 [only available in the length of the contracts and the fact that French]) and the arbitrators were unable to other gas suppliers could not participate in reach a unanimous conclusion. Moreover, the the market – Violation of Article 81(1) of the first advisory opinion was characterised by the Treaty establishing the European fact that the arbitrators pursued a variety of Communities – National authorities arguments, while the reasoning in the second provisionally setting a maximum length for advisory opinion is more uniform, with future contracts - Admissibility unanimous conclusions being drawn. The Bundesgerichtshof ruled on the Based on the nature of MERCOSUR law (law admissibility of long-term gas supply for integration), the TPR affirmed that, contracts. generally speaking, MERCOSUR provisions The German high court was asked to verify the take precedence over the internal legal legality of a decision made by the provisions of the State parties as soon as they Bundeskartellamt, the German competition are ratified, incorporated or internalised, authority, against E.ON Ruhrgas, the biggest providing MERCOSUR has legislative gas company in Germany. E.ON had competence for the area in question. With concluded gas supply contracts with a duration regard to the term “primacia” (primacy), the of more than four years with various local and TPR remarked that the same term is used by regional gas companies. In most cases, the the European Union, which is undergoing a far volume of gas to be delivered to these more in-depth integration process than companies would completely cover their gas MERCOSUR, but that the term was not needs each year. specific to European Union law. In its decision, the Bundeskartellamt not only The TPR did not rule on the compatibility of prohibited these contracts, but also laid down a the Uruguayan legal provision in question number of conditions for the conclusion of with MERCOSUR law, since it would need new contracts, notably a maximum supply more explanations regarding the description of period. More specifically, according to the the relevant measure as a ‘tax’ or ‘duty’. German competition authority, the maximum

Reflets no. 1/2010 A. Case law acceptable supply period would be determined With regard to a statute on the occupational based on the volume of gas to be supplied. For retirement scheme, the example, if the volume of gas to be supplied Bundesverfassungsgericht decided that there corresponded to more than 80% of the client’s was no justification for distinguishing between annual gas needs, the contract could only be marriage and registered partnership. Just like a concluded for a maximum period of two years. married person, a person who has lived in a registered partnership is entitled to receive an The Bundesgerichtshof approved of the allowance in the event of their partner’s death. Bundeskartellamt’s decision, which was made in application of Article 32 of the Act against First of all, the Bundesverfassungsgericht found Restraints of Competition (Gesetz gegen that when a distinction is being drawn on the Wettbewerbsbeschränkungen, GWB), a grounds of sexual orientation, very strict national provision equivalent to Article 7 of criteria must be applied to justify it. The Council Regulation no. 1/2003 (EC) of Bundesverfassungsgericht pointed out that 16 December (finding and termination of registered partnership is primarily meant for infringement). same-sex couples, according to intentions of the relevant German legislation. Excluding The Bundesgerichtshof found that the registered partnerships from an occupational long-term contracts violate Article 81 of the retirement scheme would be discriminating on Treaty establishing the European Communities the grounds of sexual orientation. In this since they lead to market isolation, making it connection, the Bundesverfassungsgericht impossible for other suppliers to participate in referred to the Maruko case (judgment of the gas market. In particular, it found that the 1 April 2008, C-267/06, Rec. p. I-1757). Bundeskartellamt was entitled to impose supply contracts with maximum terms for a With regard to the occupational retirement provisional four-year period. In its reasoning, scheme, the Bundesverfassungsgericht found the Bundesgerichtshof made several references that married people and people in a registered to the case law of the Tribunal and the partnership are in comparable situations. In European Court of Justice and took account of particular, it stressed that society had changed the difficulty of accessing the gas market. It and the traditional image of marriage, where emphasised that the adverse effects on the working partner supports the other competition were primarily connected with the (Versorgerehe), could no longer be seen as a length of the supply contracts and the volume justification for only allocating survivor’s of gas to be supplied. Simply rescinding the pensions to living spouses. contracts in question would not have been enough to put an end to the offence, since E.ON Moreover, the distinction between registered could have used the competitive advantaged partnership and marriage cannot be justified linked to its structure (a consequence of the by the desire to specifically protect the latter. company’s past monopoly on the market) to The Bundesverfassungsgericht highlighted immediately conclude new contracts that would that it was possible to protect the institution of also have adverse effects on competition. marriage without putting other lifestyles at a disadvantage. Bundesgerichtshof, order of 10 February 2009, The Bundesverfassungsgericht based its argument KVR 67/07 wholly on German law, mainly the Basic Law. It www.bundesgerichtshof.de overturned the Bundesgerichtshof’s judgment of 14 February 2007 (which was taken well before IA/32190-A the European Court of Justice’s judgment on the [AGT] Maruko case) in which the German high court, ------basing its judgment on its interpretation of Council Directive 2000/78/EC of Fundamental rights – Equal treatment 27 November 2000, had decided against the –Occupational retirement scheme appellant, without feeling it had to refer the matter distinguishing between married beneficiaries to the European Court of Justice. However, a case and other beneficiaries and giving married referred by the Arbeitsgericht Hamburg and beneficiaries advantages over same-sex partners raising similar questions to the Maruko case is living in a registered partnership (eingetragene currently pending before the ECJ (C-147/08, Lebenspartnerschaft) -Violation of the Basic Jürgen Römer v. Freie und Hansestadt Hamburg). Law (Article 3(1) Grundgesetz)

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The BVerfG believes that this interpretation is Bundesverfassungsgericht, order of not compatible with the fundamental right 7 July 2009, 1BvR 1164/07 enshrined in Article 16(2) of the German www.bundesverfassungsgericht.de Basic Law, which prohibits, in principle, the extradition of a German citizen. Law-based IA/32474-A [AGT] dispensations are only possible to the extent that principles regarding the rule of law are observed. The OLG’s interpretation would - - - - - mean a disproportionate amount of interference with this fundamental right and would make it impossible to give a sufficiently European Union – Police and judicial precise, predictable definition of the scope of cooperation in criminal matters – Framework this interference. For these reasons, the decision on the European arrest warrant and BVerfG threw out the order and referred the surrender procedures between Member States case to the OLG. – Grounds for optional non-execution of the European arrest warrant – Criminal In its order of 7 September 2009, the OLG, prosecution is statute-barred – Effect of basing its actions on another European arrest prosecution measures by foreign authorities – warrant, once more declared that extradition of No effect – Requirements regarding the acts the appellant was admissible. It ruled that the described in the European arrest warrant and acts outlined in the arrest warrant were not regarding the check performed by the trial statute-barred under German law. judge – Violation of Article 16(2) of the German Basic Law, which protects German According to the BVerfG, the OLG’s decision citizens from extradition arbitrarily violated the fundamental right protecting the appellant from extradition. The With its orders of 3 September and grounds given in the order did not meet the 9 October 2009, the German constitutional requirements for grounds for a decision made court (Bundesverfassungsgericht, hereafter by a trial judge. The BVerfG believed that the referred to as “the BVerfG”) quashed the OLG had not sufficiently analysed the issue of decisions made by Munich higher regional potential statute-barring. Furthermore, it held court (Oberlandesgericht München, hereafter that the description of actions attributed to the referred to as “the OLG”), which had declared appellant in the European arrest warrant, which the appellant’s extradition to be admissible. had been accepted by the OLG, was too vague The appellant is a national of both Germany for checks to take place that would meet the and Greece. The Greek authorities, on the requirements resulting from the great basis of several European arrest warrants, are significance of the fundamental right in requesting the appellant’s extradition for question. Indeed, the description of actions criminal prosecution. given in an extradition request must allow . investigation of whether they are punishable acts and examinations of the conditions for According to German legislation, extradition is extradition and grounds for non-execution. not admissible where German courts have jurisdiction and when criminal prosecution is For the reasons set out above, the BVerfG also statute-barred under German law (see also threw out the second order of 9 October 2009 Article 4(4) of framework decision 2002/584). and referred the case to another higher regional In its order of 10 August 2009, the OLG court, which must now rule on the admissibility decided that the prosecution measures being of extraditing the appellant. taken by the Greek authorities could, by their nature, interrupt the statute-barring under Bundesverfassungsgericht, order of German law, so the fact that criminal 3 September 2009, 2 BvR 1826/09, published on prosecution was statute-barred in Germany the Bundesverfassungsgericht’s website: would not prevent extradition. www.bundesverfassungsgericht.de/entscheidung en/rk20090903_2bvr182609.html

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could determine alone whether such a clause IA/32457-A had been relinquished tacitly, in cases where [TLA] relinquishment is clear and obvious.

Belgium Cour de Cassation, 24 March 2009, P.08.1881.N/1, www.cass.be

Police and judicial cooperation in criminal IA/31849-A matters – European arrest warrant and [JTZ] surrender procedures between Member States – Relinquishment of the benefit of the rule of speciality – Tacit relinquishment – Court’s ability to determine facts alone - - - - -

In its judgment of 24 March 2009, the Cour de Cassation rejected an appeal against a judgment by the Brussels Court of Appeal Free movement of persons – Right of entry with regard to the European arrest warrant, and residence – Right of residence for family holding that relinquishment of the rule of members – Conditions – Requirement that speciality can also be tacit, to the extent that the ascendant (from a third country) of a this relinquishment is clear and voluntary. Belgian child be dependent upon that child – Discrimination against Belgian children In 2004, Belgium had asked Luxembourg to born to foreign parents versus Belgian extradite the claimant, who had committed children born to Belgian parents – No certain offences. Following this individual’s discrimination extradition to the Belgian authorities, the indictment division of the Ghent Court of In its judgment of 3 November 2009, the Cour Appeal granted the claimant temporary release Constitutionnelle, which had been asked to on the condition that the claimant never leave give a preliminary ruling by the Conseil d’État, Belgian territory. However, the claimant was judged that former Article 40(6) of the law of found in the Netherlands in 2007. 15 December 1980 on Access to the Territory, Consequently, the examining judge issued Residence, Settlement and Expulsion of another European arrest warrant for the Foreign Nationals, before !its amendment by commission of certain crimes not covered in the law of 25 April 2007, did not violate the the first arrest warrant. The Netherlands then principles of equality and non-discrimination followed up on the new arrest warrant. enshrined in the Belgian constitution, whether these principles be considered alone or together The Brussels Court of Appeal had decided that with Articles 8 and 14 of the European the claimant had, by not complying with the Convention on Human Rights. condition of never leaving Belgian territory, clearly and obviously relinquished the Former Article 40(6) allowed ascendants of speciality clause applying to the extradition by Belgian children, where these ascendants are Luxembourg. This resulted in the speciality nationals of a third country, to be put in the clause being withdrawn in this case, meaning same category as EU nationals when it comes that the claimant could be prosecuted for to residence rights, referring to EU regulations offences committed before the extradition by and directives, providing they are dependent Luxembourg, which had not given rise to the on their Belgian children. If ascendants were European arrest warrant being issued. not dependent upon their minor children, this Rejecting the argument that the claimant had article meant that such children would have to never relinquished the speciality clause either live in an unstable situation in Belgium applying to the extradition by Luxembourg, (given that their parents were residing in the the Cour de Cassation confirmed that a judge country illegally) or follow their parents to their country of origin, which would deprive them of economic and social rights that they could only enjoy in Belgium. In its judgment, the Cour Constitutionnelle began by rejecting the appellant’s request to refer a preliminary question to the Cour de Justice (despite the Cour Constitutionnelle’s status as court of last Reflets no. 1/2010 A. Case law instance) concerning the interpretation of treatment of Belgian children created by Articles 12, 17 and 18 of the Treaty establishing Article 40(6) and any resulting infringement the European Community. They wished to on the children’s right to respect of their know whether these articles give a national of a family life could not be considered European Union Member State the right to disproportionate, since their parents could reside within the territory of that same State. obtain the right to reside within Belgian The Cour Constitutionelle observed that in the territory. case in point, the appellants’ minor children held Belgian nationality and had the unconditional right to reside within Belgian territory, so it was not necessary to check Cour constitutionnelle, 3 November 2009, whether a Belgian national could invoke the 147/2009, www.arbitrage.be right of an EU national to reside within the IA/32501-A territory of which he or she is a national. It [JTZ/CREM] should be noted here that the Brussels industrial tribunal did not adopt the same position and asked the European Court of Justice a Finland preliminary question on the matter, currently pending (Gerardo Ruiz Zambrano Gerardo v. Competition - Cartels – Collusion between Office national de l’emploi, C-34/09). tenderers - Violation of Article 81(1) of the Treaty establishing the European The Cour constitutionnelle then reiterated that Communities – Council Regulation (EC) foreign ascendants may only be placed in the no. 1/2003 of 16 December 2002 – Impact of same category as EU nationals if they are Community law on the application of national dependent upon their children, which would competition law on competition – involve the children taking practical and Responsibility attributed – Criterion of financial responsibility for them. However, economic continuity when the Belgian children in question are minors, this condition must be interpreted as The Economic Affairs Tribunal requiring that the parents have sufficient (markkinaoikeus, hereafter referred to as “the resources to support themselves and their MAO”) referred an appeal against a decision children. In this case, the Cour Constitutionnelle to the Supreme Administrative Court (korkein found that while the condition of dependency hallinto-oikeus, hereafter referred to as KHO) could be justified on a case-by-case basis, since which, in its judgment of 29 September 2009, foreign ascendants should not become ruled that the EU rules governing competition dependent on the host State by virtue of a family and the relevant case law of the European reunification if their adult Belgian children Court of Justice had to be taken into account cannot support them, the situation for Belgian when ruling on prohibited concerted action, minor children was more problematic. even if this action had taken place before Council Regulation (EC) no. 1/2003 of When analysing the supposed difference in 16 December 2002 came into force. treatment of Belgian minor children based on the nationality of their parents, the Cour Constitutionnelle referred to a letter of The actions leading to this judgment, under instruction issued by the minister responsible for which seven asphalting companies were the asylum and integration policy on sentenced to pay fines amounting to 26 March 2009, which said that the foreign €82.55 million, took place between 1994 and parents of Belgian minor children, providing 2002. Over this period, the companies in they had a real, genuine family life with those question violated the Finnish Act on children, must be viewed as being in an urgent Competition Restrictions (480/1992) as it was humanitarian situation giving rise to exceptional at the time (hereafter referred to as conditions that could lead to the parents being “law 480/1992”). More specifically, the granted a residence permit. companies had violated Article 6 of law 480/1992, which prohibits the division of In view of this letter of instruction, the Cour contracts, in that they engaged in concerted Constitutionnelle held that any difference in practices relating to tenders, which was prohibited under Article 5.

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two systems. Particularly considering that trade The MAO, by virtue of its decision of late between Member States was affected, the KHO 2007, sentenced the companies to pay the found that the offence in question had to be aforementioned fines at the suggestion of the assessed according to the EU rules and case law Competition Office (hereafter referred to as that were in force when the Office made its “the Office”). When appearing before the suggestion. As for attributing responsibility for MAO, some of the companies questioned, the offences committed, the KHO referred to the among other things, the individual criterion of economic continuity as developed in responsibility of the companies involved. The EU case law. Since this criterion is relevant and attribution of responsibility was indeed a commonly recognised, the KHO ruled that relevant issue since several companies, having imposing fines based on it could not violate the taken part in this legal violation, had been principles of legality and foreseeability. dissolved. In this respect, though the MAO did not accept the Office’s argument, which was Korkein hallinto-oikeus, judgment of based on EU case law, it did confirm that the 29 September 2009, KHO 2009:83, companies had also violated Article 81(1) of the Treaty establishing the European www.finlex.fi/fi/oikeus/kho/vuosikirjat/2009/200 Community. The MAO mainly settled the 902389 matter by examining the concept of a company, as set out in the preparatory work for law IA/31680-A 480/1992. Given that an offence was committed before the entry into force of [LAP] Council Regulation (EC) no. 1/2003 of France 16 December 2002 and the relevant amendment of law 480/1992, the MAO found Acts of the institutions - Directives – Direct that it was not competent to consider EU applicability – Powers of the national court – competition rules when interpreting law Assessing the conformity of a national rule 480/1992. The aforementioned amendment with the provisions of a directive (hereafter referred to as “law 318/2004”) gave the MAO the power to impose fines for In its assembly decision on the Perreux case on violations of Article 81 of the Treaty 30 October 2009, the Conseil d’État ruled that establishing the European Community as well. “the transposition into national law of EU directives, which is a requirement stemming Further to the appeal, and with regard to the two from the Treaty establishing the European types of fixed-price contract in question (that is, Community, can be considered a constitutional work ordered by the Finnish State within the requirement by virtue of Article 88(1) of the framework of a public procurement contract and Constitution, among other things. (…) For these work ordered by municipalities and individuals), two reasons, it is the responsibility of the the KHO determined that there had been national court (…) to guarantee the collusion between tenderers, that this collusion effectiveness of the rights that each individual covered the entire country and that the aim of has as a result of this requirement with regard to these actions had been to prevent fully effective the public authorities. (…) As a result, all competition on the Finnish asphalting market. litigants can ask for the annulment of legal provisions that may go against the aims set out Moving beyond the MAO’s very formal in the directives and, when contesting an approach with regard to the applicability of administrative decision, assert, whether through Article 81 of the Treaty establishing the a legal action or an exceptional remedy, that European Community to the offence, the KHO once the relevant deadlines have passed, the pointed out that since Finland had joined the national authorities may no longer allow European Union, EU competition rules were national legal provisions to remain in force or directly applicable at national level and that continue to apply written or unwritten rules companies were required to comply with them. from national law that may be incompatible Furthermore, the KHO referred to the fact that with the aims set out in the directives. (…) the aim of law 480/1992 had been to bring Furthermore, all litigants may refer to the Finnish law on the matter closer to Community precise and unconditional provisions of a law and to ensure that there were fewer directive in support of an appeal against a non- differences between the structures present in the

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statutory administrative act, where the State has Perreux, appeal no. 298348 not taken the required measures to transpose the www.legifrance.gouv.fr directive in question by the deadline it set.” IA/32055-A [VGP] This decision, which was handed down by the ------most formal formation of the Conseil d’État, is a reversal of case law when compared to the Primacy of Community law - Directive decision of 22 December 1978 in the 2003/87/EC of the Parliament and of the Cohn-Bendit case (IA/01607-B) which stated Council of 13 October 2003 - Transposition – that, contrary to the case law of the Cour de Reconciling the supremacy of the constitution Justice (see in particular the judgments of with EU requirements – Judicial cooperation 4 December 1974, Van Duyn, 41/74, Rec. 1974, p. 1337; 28 October 1975, Rutili, 36/75, By applying the solution used by the European Rec. 1975, p. 1219 and 5 April 1979, Ratti, Court of Justice (judgment of 148/78, Rec. 1979, p. 1629), an appellant could 16 December 2008, C-127/07, Société Arcelor only directly refer to the provisions of a Atlantique et Lorraine e.a., not yet published), directive in support of an appeal against an the Conseil d'État put an end to the Arcelor individual administrative act. case with its judgment of 3 June 2009. The case had begun two years before when, in an Of course, the significance of the Cohn-Bendit earlier judgment, the Conseil d'État set out; in case law has diminished over time. In fact, the principle, the methods for checking the Conseil d’État had gradually seem more and constitutionality of statutory acts directly more cases in which the provisions of transposing a directive with precise and directives could be cited by litigants taking unconditional provisions (CE assembly legal action or by those implementing decision of 8 February 2007, no. 287110, exceptional remedies (see the findings of Société Arcelor Atlantique et Lorraine e.a., see Mr Guyomar, public rapporteur, on CE Reflets no. 2/2007, p. 11 [only available in assembly decision of 30 October 2009, French], QP/05767-A9). Perreux case, published in RFDA 2009, p. 1125). In so doing, the Conseil d’État had, in At that time, the Conseil d'État found that, particular, allowed appellants to refer to the given the constitutional requirement to provisions of a directive when questioning transpose directives, this check must be statutory measures or whether a directive had performed according to special methods. The been transposed. It also allowed appellants national court, when faced with an argument using exceptional remedies to raise the based on the failure to consider a provision or illegality (in terms of the provisions of a principle of constitutional value, must find out directive) of the statutory standard on which whether there is a general rule or principle in an individual decision was based (see inter alia Community law which, in view of its nature CE decision of 3 February 1989 in the Alitalia and significance, as interpreted by the current case; CE decision of 30 October 1996 in the case law of the EU courts, guarantees the Cabinet Revert et Badelon case and CE applicablility of compliance with the national decision of 6 February 1998 in the Tête case). constitutional provision or principle in question. If there is, the administrative court must then However, the Conseil d’État had never officially find out whether the directive being transposed discarded the Cohn-Bendit case law. It has now by this decree complies with this general rule or done so, and at the same time, the judgment in principle in Community law. If there are no the Perreux case has ended the ‘case law major difficulties, the argument must be isolation’ of Conseil d’État in Europe as regards dismissed or otherwise referred for a the direct applicability of directives (see the preliminary ruling. However, if there is no findings of Mr Guyomar, mentioned above, and general rule or principle in Community law also S.J. Liéber, D. Botteghi, Mme Perreux - Où guaranteeing the applicablility of compliance Cohn-Bendit fait sa révolution, AJDA 2009, with the constitutional provision or principle in p. 2385 and P. Cassia, Une nouvelle étape dans question, the national court may directly assess l'Europe des juges. L'effet direct des directives the constitutionality of the contested statutory devant la juridiction administrative française, provisions. RFDA 2009, p 1146). Conseil d'État, assembly, 30 October 2009,

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Ireland The national court determined that there was a major difficulty in the case in point, and so, Fundamental rights – Equal treatment and applying the reasoning set out above, referred non-discrimination – Exclusion of women from the case for a preliminary ruling as regards the membership of a private club – Council validity of Directive 2003/87/EC of the Directive 2004/113/EC of 13 December 2004 – Parliament and of the Council of Freedom of association 13 October 2003 establishing a scheme for greenhouse gas emission allowance trading In a judgment handed down on within the Community. In a judgment handed 3 November 2003, the Supreme Court down by the Grand Chamber on confirmed a High Court decision according to 16 December 2008, the European Court of which the ban on women joining a certain golf Justice concluded that the directive did not club was not discriminatory within the ignore the principle of equal treatment. Taking meaning of the law on equal treatment in note of the solution found by the European access to goods and services, the Equal Status court, the Conseil d’État also concluded that Act 2000. The main issue at hand was whether the argument that the constitutional principle the different treatment given by the club could of equality had not been taken into account by fall within the scope of one of the Equal Status decree no. 2004-832 of 19 August 2004, Act 2000’s exceptions to the principle of equal which was adopted to transpose the directive, treatment. In the case in point, the members of was unfounded. the Supreme Court were divided on the issue and drew up four different judgments. The Conseil d'État’s method makes it possible However, the majority ruled in favour of the to guarantee the primacy and uniformity of golf club. This decision was met with strong Community law, initially through a ‘transfer’ criticism from the Irish media and several procedure in favour of Community law with associations in Ireland. The golf club in the reclassification of the argument of question, which is based in Portmarnock unconstitutionality as an argument of (Dublin) and was founded in 1894, was unconventionality and secondly, if the case is recognised by the Supreme Court as an old and referred to the European Court of Justice and venerable institution in Ireland. It is also one of this court replies, through a ‘detransfer’ the last two golf clubs in the country to operation conducted by the court a quo continue excluding women from membership. (Mr Guyomar’s findings on the CE decision of 3 June 2009, Société Arcelor Atlantique et The Supreme Court concentrated on the Lorraine e.a., no. 287110, RFDA 2009, p. interpretation of the relevant provisions of the 8000 and F. Lafaille, La jurisprudence Arcelor Equal Status Act 2000, which, in the case in bis permet-elle de [concilier l'inconciliable]?, point, were Articles 8 and 9 on discriminating AJDA 2009, p. 1711). clubs. Under Article 8(2), a club is considered to be a discriminating club “if it has any rule, Conseil d'État, 3 June 2009, appeal no. 287110, policy or practice which discriminates against a Société Arcelor Atlantique et Lorraine e.a., member or an applicant for membership”. www.legisfrance.gouv.fr Article 8(2)(b) lists specific examples of QP/ 05767-P1 discriminatory behaviour, such as refusing to [NRY] admit a person to membership. Article 9 of the law sets out some exceptions to Article 8. For instance, such discriminatory practices by a club are allowed where the club’s primary purpose is to meet the needs of people of a particular gender. Article 9(1) is worded as follows: “For the purposes of section 8, a club shall not be considered to be a discriminating club by reason only that- (a) Its principal purpose is to cater for the needs of inter alia (i) persons of a particular gender…”. In this respect, it should be noted that Article 9(1) was drawn up bearing in mind the constitutional right of citizens to freedom of association. This Reflets no. 1/2010 A. Case law case is an excellent example of the difficulties course possible that Irish law in this regard is surrounding the relationship between this more restrictive than European law, whether constitutional right and the principle of or not such restriction would pass muster in non-discrimination. Strasbourg or in Luxembourg.”

In the case in point, the judges agreed that the Supreme Court, judgment of 3 November 2009, golf club could be considered a discriminating Equality Authority v. Portmarnock Golf Club club within the meaning of Article 8 of the [2009] IESC 73, www.courts.ie Equal Status Act 2000. The club’s rules explicitly stated that membership of the club IA/31678-A was restricted to “gentlemen properly elected”, i.e. to men. However, in practice, women were [SEN] allowed to play golf at the club and had access to the changing rooms, the bar and the restaurant, so the main issue for the Supreme - - - - - Court was determining whether the exception mentioned in Article 9 was applicable to the European Convention on Human Rights – club in question. This entailed a detailed Freedom of expression – Journalist’s privilege examination of the wording of Article 9, – Journalists’ right to protect their sources – particularly the words “principal purpose” and Contravention of Article 10 of the Convention “needs”. According to the appellant (the In a judgment pronounced on 31 July 2009, Equality Authority, a non-governmental body the Supreme Court ruled unanimously on aiming to fight discrimination), the club can journalists’ right to protect their sources only be covered by the exception if there is a following an appeal against a High Court logical connection between the club’s primary decision handed down on 23 October 2007. purpose and men’s needs. The Equality According to one commentary, this decision is Authority believed that it was clear from the a decisive step in the development of legal rules of the club in question that the club’s recognition of journalists’ right to protect their principal purpose was to enable golfers to play sources, given that this was the first time the golf. Moreover, the Equality Authority argued Supreme Court had ever explicitly ruled on the that golf could not be considered a “need” of subject? The judgment, which was delivered men. For its part, the golf club held that its by Judge Fennelly, also stands out by its very principal purpose was to meet the needs of its clear argumentation on the application of the members, i.e. men, which would mean it was European Convention on Human Rights in covered by the exception outlined in Article 9. Ireland and the developments the judgment The majority of the Supreme Court judges contains with regard to the principal of supported the club’s argument. Judge freedom of expression, which is protected by Hardiman found that the Equality Authority’s Article 10 of the Convention. reasoning was too limited. He held that the The dispute arose following investigations meaning of the word “needs” was much ordered by an administrative court (Tribunal broader and covered social, cultural and of Inquiry into Certain Planning Matters and sporting needs, as well as more basic needs Payments, hereafter referred to as “the like food, water and so on. He observed that Tribunal”) into certain payments received by the case raised fundamental questions relating politicians. Against this backdrop, one of the to the constitutional rights of citizens to appellants, the journalist Mr Keena, published freedom of association and the State’s power an article in the national newspaper The Irish to regulate such associations. The court took Times in September 2006, revealing that the account of Council Directive 2004/113/EC of Tribunal was examining payments received by 13 December 2004 implementing the principle Bertie Ahern, who was Taoiseach (Prime of equal treatment between men and women in Minister) at the time and had Minister for the access to and supply of goods and services, Finance in the past. The article was based on a noting that single-sex private clubs are confidential letter which had been written by protected by the directive. In this connection, the Tribunal as part of its private inquiries and Judge Hardiman remarked: “"But it is of sent anonymously to Mr Keena.

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E.H.RR 123, the Supreme Court ruled that an After this article was published, the Tribunal, order requiring journalists to reveal their by virtue of the powers bestowed upon it by sources could only be justified by an the Tribunals of Inquiry (Evidence) Acts 1921 overriding requirement in the public interest. to 2004, asked Mr Keena to provide it with the In the Supreme Court’s view, there was no confidential documents he had received such requirement in the case in point. anonymously. Mr Keena and the editor of the Irish Times, Ms Kennedy, refused to do so, Supreme Court, judgment of 31 July 2009, claiming that the documents had been Alan P. Mahon & Others v Keena & Kennedy destroyed. Ms Kennedy also maintained that [2009] IESC 64, www.courts.ie the information was protected by journalist’s privilege. In the face of their refusal, the IA/31677-A [SEN] Tribunal asked the High Court to order them to comply with its request. In a judgment Italy delivered on 23 October 2007, the High Court ordered the appellants to answer the questions Request for access to the documents on an the Tribunal asked to identify the source of the administrative proceeding – Party indirectly confidential information. In its decision, the affected by the administrative proceeding – High Court recognised the right of journalists Refusal of request by the administrative to protect their sources: “the non-disclosure of authority in question - Admissibility journalistic sources enjoys unquestioned acceptance in our jurisprudence and In a judgment passed on 2 November 2009, interference in this area can only happen where Lazio Regional Administrative Court rejected the requirements of Article 10(2) (CEDH) are an appeal against the decision of the Italian met…”. Despite this statement, the High Court, competition authority (Autorità Garante della after evaluating the interests at stake, decided Concorrenza, hereafter referred to as that the need to ensure that the public “AGCM”) refusing access to documents on an continued trusting the Tribunal was more administrative proceeding against the company important than journalists’ right to protect Telecom Italia Spa (hereafter referred to as their sources. It should be noted, in this respect, “Telecom”). that the High Court considers destruction of documents by journalists to be particularly In the case in point, the appellant had requested reprehensible, so this was an important factor access to these documents with a view to using in its decision. them in another pending civil proceeding against Telecom.

When asked to rule on an appeal against this The administrative court’s decision to confirm decision, the Supreme Court did not confirm the AGCM’s decision to withhold access to the the High Court’s position. It determined that documents was based on the fact that the in the case in point, the High Court had taken appellant’s interests were not related to the the wrong approach to balancing interests. subject of the administrative proceeding to According to Judge Fennelly, the High Court which access had been requested (i.e. abuse of had devalued journalist’s privilege to such an Telecom’s dominant position on the market). extent that it balanced interests incorrectly. Consequently, the High Court had not struck Consequently, the administrative court held the right balance between the Tribunal’s right that the AGCM’s refusal of the request for to protect the inquiry and the journalists’ right access was justified by the fact that a general to protect their sources. Judge Fennelly ruled interest in information is, in itself, not enough that the national law on the Tribunal had to be to gain access to administrative documents. It interpreted in a way that was compatible with is also essential to establish that there is a the State’s duties under the European direct, concrete and current interest, which Convention on Human Rights. After applying exists when the appellant is directly affected by the principles established by the case law of the administrative proceeding in question. the European Court of Human Rights on Where this is not the case, the administrative Article 10 of the European Convention on bodies in question shall legitimately refuse any Human Rights, and especially by the judgment requests for access. in Goodwin v. United Kingdom (1996)

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Moreover, the administrative court pointed out The Italian legislation mentioned by the ATA that since the appellant could have asked the staff provided for the recognition of years civil court to order AGCM to provide the worked for the local authorities originally relevant documents when the proceeding employing the staff. However, during the against Telecom began, given that the appellant pending proceedings against itself, the State was interested in the documents as a source of adopted legislation with a retroactive effect for proof of a right to compensation due to imperative reasons of a general nature. This anti-competitive behaviour on the legislation meant that transferred staff no telecommunications market. longer had the right to be included in the same pay categories as ATA staff originally Tribunale Amministrativo regionale - regione employed by the State. In view of this, the Lazio, judgment of 2 November 2009, no. 615 primary appellants cited a violation of www.giustizia-amministrativa.it Article 6 of the Convention.

IA/32321-A The case in question was also referred to the [VBAR] European Court of Justice for a preliminary ruling. In its order of 3 October 2008 (Savia European Convention on Human Rights – e.a., C-287/08, Rec. p. I-136), the Court Respecting international obligations – declared that it manifestly did not have Conflict between a national provision and a jurisdiction to rule on the matter. provision in the Convention – Breach of the Italian constitution – Jurisdiction of the Conversely, the Constitutional Court, ruling on the merits of the case, threw out requests Constitutional Court aiming to declare the Italian legislation in In its judgment of 26 November 2009, the question unconstitutional with regard to both Constitutional Court reached a decision on the Article 117 of the Italian constitution and matter of whether an Italian law, which the Article 6 of the Convention. referring court believed may conflict with Article 6 of the European Convention on Human Rights (hereafter referred to as “the Corte Costituzionale, judgment of Convention”), was compatible with Article 117 26 November 2009, no. 31 www.lexitalia.it of the Italian constitution, which provides that IA/32320-A international obligations must be met. [VBAR]

At that time, the Court defined its jurisdiction, highlighting that it was entitled to check Malta whether a provision of the Convention, as interpreted by the European Court of Human Judicial cooperation in civil matters – Rights in Strasbourg, goes against the Italian Council Regulation (EC) no. 44/2001 of constitution or not. 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in The Constitutional Court held that where this civil and commercial matters – Scope – Civil was the case, the national law transposing the and commercial matters – Concept – French Convention would have to be considered judgment ordering a Maltese company to unconstitutional, since it is not possible to cease its activities in horse-racing bets, an declare the Convention’s provisions unlawful. activity covered by the monopoly awarded by French law to a single operator in the The case in point concerned the administrative, interests of protecting public order – technical and auxiliary staff (hereafter referred Exclusion – Refusal of exequatur to as “ATA staff”) of state schools, who had initially been employed by a local authority but In its judgment of 9 January 2007, the Maltese had then acquired the status of state employee. Court of Appeal (Qorti ta' l-Appell) refused to The staff in question asked for the right to be grant an exequatur order for a judgment by the included in the same pay categories as ATA Paris Court of Appeal ordering Zeturf, a staff who had always been employed by the company under Maltese law, to cease its State and who had the same seniority. bookmaking activities on French territory since

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Reflets no. 3/2007, p. 14 [only available in French law accords a monopoly on this activity French]). to the economic interest grouping Pari mutuel urbain (hereafter referred to as “PMU”) in the Qorti ta' l-Appell, judgment of 9 January 2007, aim of protecting public order. According to GIE Pari Mutuel Urbain v Zeturf Limited the Maltese court, the case could not be (C35469) qualified as a dispute in civil or commercial http://www.justiceservices.gov.mt/courtservices/ matters within the meaning of Council Judgments/default.aspx Regulation (EC) no. 44/2001 of 22 December 2000, since PMU was actually IA/29189-A acting for the government. [PE] [SOHA] Zeturf organises and runs online bets on horse races, most of which take place in France. In The Netherlands June 2005, PMU referred the matter to the Paris Regional Court to request the cessation of this Social policy – Protection of workers’ health activity. As part of its action, PMU mentioned and safety – Directive 2003/88/EC of the that it held a legal monopoly on organising bets European Parliament and of the Council of on horse races and that this had been infringed 4 November 2003 – Working time – upon. In its first order, issued on 8 July 2005, Interpretation in line with the directive – the Regional Court found in favour of PMU Administrative fine – Violation of the and instructed the Maltese company to cease its principle of legal certainty “clearly unlawful” activities. The Paris Court of Appeal, which was asked to rule on the appeal In a judgment handed down on 4 March 2009, against this order, confirmed the Regional the Raad van State ruled that for reasons of Court’s decision on 4 January 2006 and pointed legal certainty, national legislation could not be out that PMU holds a monopoly on the relevant interpreted in line with Directive 2003/88/EC activity due to legal provisions aiming to of the European Parliament and of the Council protect public order in France. of 4 November 2003 for the purposes of imposing an administrative fine. Once this judgment had been passed, PMU asked Malta to force its execution in application The Minister of Social Affairs and of Council Regulation (EC) no. 44/2001 of Employment had, through a decision issued on 16 December 2000. This request was accepted 20 September 2006, imposed a fine on the in the first instance by the First Hall of the Civil company Mandemakers (hereafter referred to Court (Il-Prim' Awla tal-Qorti Ċivili), which as “Mandemakers”) because some of its handed down its decision on 16 March 2006. employees did not keep to the appointed The decision was appealed to the Qorti ta' working times and rest periods. According to l-Appell, which upheld Zeturf’s appeal. The the Minister, the time taken by Mandemakers court observed that Council Regulation employees to travel between their homes and (EC) 44/2001 of 16 December 2000 only their first and last clients of the day should be applied to judgments in civil and commercial counted as working time. Mandemakers lodged matters and therefore did not apply to the a complaint against this decision, which French decision of 4 January 2006. In support resulted in the Minister reducing the fine by of this line of reasoning, it mentioned the 50% in a decision issued on 4 July 2007. judgment in the Steenbergen case (European On 4 July 2007, Breda District Court Court of Justice judgment of overturned the Minister’s decision, citing 14 November 2002, C-271-00, Rec. p. I-10489) faulty reasoning, but ruled that the legal and concluded that an action to defend PMU’s consequences of the decision should still stand. legal monopoly belonged in the domain of The court held that the Dutch law on working administrative law rather than civil law, given time should be examined in the light of that the law awarding this monopoly aims to Directive 2003/88/EC of the European protect public order. Parliament and of the Council of 4 November 2003 concerning certain aspects After this judgment was pronounced, the of the organisation of working time (hereafter decision by the Paris Court of Appeal was referred to as “the directive”). According to the suppressed by the Cour de Cassation (see directive, working time means “any period Reflets no. 1/2010 A. Case law

during means any period during which the worker is working, at the employer's disposal and carrying out his activity or duties, in accordance with national laws and/or practice”. State aids – Flight tax – Interim proceedings The court added that according to the European Court of Justice, working time is a concept in On 20 December 2007, a flight tax [or Community law and should be interpreted (airport) departure tax for environmental autonomously. Consequently, the court found purposes] was introduced by the Dutch law that the time taken by Mandemakers employees establishing environmental protection taxes to travel between their homes and their first and (hereafter referred to as “the law”). The tax is last clients of the day should be counted as charged for each passenger leaving an airport working time. in the Netherlands and must be paid by the airport operators. It is then passed on to the Mandemakers lodged an appeal against this airlines and finally, the passengers. decision with the Raad van State, which threw out the judgment at first instance. Transfer passengers are exempt from this tax.

The Raad van State observed that as Dutch Maastricht Aachen Airport B.V (hereafter law does not define the concept of ‘working referred to as “MAA”), which operates time’, Article 2 of the directive had been not Maastricht Aachen Airport, and Ryanair, an been correctly transposed into Dutch law. airline that operates flights from Maastricht According to the Raad van State, it was Aachen Airport, opposed this tax because impossible to interpret the concept of there are no transfer passengers at Maastricht ‘working time’ in line with the directive for Aachen Airport, so Ryanair has to pay flight the purposes of imposing an administrative tax for all its passengers. Conversely, 42% of fine on Mandemakers. Referring to the the passengers at Schipol Airport are transfer European Court of Justice’s judgments in the passengers. In view of this fact, MAA and Kolpinghuis (80/86, Rec. p. 3969) and Arcero Ryanair argued that they are more affected by (C-168-95, Rec. p. I-4705) cases, in which the the tax than Schipol Airport and the airlines ECJ found that “obligation on the national operating from there and that the State is court to refer to the content of the directive therefore providing aid to Schipol Airport and when interpreting the relevant rules of its the airlines that use it. national law is limited by the general principles of law which form part of In an application for interim measures, MAA community law and in particular the principles and Ryanair asked that the Dutch law of legal certainty and non-retroactivity”, the establishing the tax be declared irrelevant until Raad van State argued that this case law the European Commission had made a should also be applied to cases involving decision on the matter. The District Court and administrative fines, such as the case in point. The Hague Court of Appeal found that the tax The Raad van State held that the principal of did not seem to constitute a State aid and legal certainty did not allow the directive to be dismissed the application for interim interpreted in line with Dutch law, and so measures. concluded that the Minister was not competent The Hoge Raad (Supreme Court) then found, to impose an administrative fine upon during cassation proceedings, that the Court of Mandemakers. Appeal’s judgment was not vitiated by an Raad van State, 4 March 2009, Keukencentrum error of law. Mandemakers BBV v. Minister van Sociale First of all, the Hoge Raad observed that the Zaken en Werkgelegenheid, case in point dealt with a formal legal www.rechtspraak.nl, LJN BH4621 provision, which could only be declared irrelevant if it undeniably constituted a State IA/31854-A aid within the meaning of Article 87(1) of the [SJN] Treaty establishing the European Community and indisputably contravened Article 88(3) of that treaty (Article 108(3) of the Treaty on the Functioning of the European Union). This is - - - - - Reflets no. 1/2010 A. Case law

Article 4 of the Treaty on European Union not true of the case in point, since the tax is provides that the European Council is paid by all airport operators in the Netherlands composed of the heads of state and government for all departing passengers, except transfer of the Member States, thus leaving the choice passengers. This is not called into question by to national laws. Since the Polish constitution the fact that some operators benefit more from contains no explicit rules on this matter, the the exemption than others. Constitutional Court systematically interpreted the provisions relating to the tasks, duties and Consequently, taking into account that an competences of the executive branch of in-depth economic analysis would probably government. have to be conducted before determining the effect of the exemption for transfer passengers As per Article 146 of the constitution, the and although that there was no place for it in Polish cabinet is responsible for Poland’s an interim proceeding, the Hoge Raad domestic and foreign policy and handles concluded that flight tax was not indisputably matters of state policy that are not reserved to a State aid and could therefore not be declared other authorities and local government units. contrary to Article 88(3) of the Treaty According to the Constitutional Court, establishing the European Community European matters are closely linked to domestic (Article 108(3) of the Treaty on the policy, so the more the subject under discussion Functioning of the European Union) within the at the European Council summit had to do with framework of such a proceeding. domestic policy, the less necessary it was for representatives of bodies other than the cabinet Hoge Raad, 4 September 2009, Maastricht to attend. According to the principles set out in Aachen Airport B.V., Ryanair Limited Ireland v. the constitution and legislation, the Polish the Dutch State (Ministry of Finance), cabinet is generally responsible for managing www.rechtspraak.nl, LJN BI345 relations with foreign countries and Poland’s external security. The Prime Minister is IA/31242-A responsible for implementing the cabinet’s [SJN] policies and determining how they will be Poland implemented (Article 148 of the constitution). The Polish cabinet’s competence to manage the Constitutional law – Overlapping competences country’s external relations is supplemented by of the State’s central constitutional authorities Article 133 which, when listing the President’s – Competence to appoint Poland’s prerogatives, states that the President represents representatives on the European Council – the State in the domain of external relations. Competence to adopt Poland’s position and The President needs to cooperate with the present this position to the European Council Prime Minister, the Minister of Foreign Affairs or the Parliament to exercise some of the The Constitutional Court ruled on the prerogatives. competence of Poland’s central constitutional The Constitutional Court held that the President, authorities to represent Poland in the European the cabinet and the Prime Minister had to Council in a decision handed down on observe the principle of inter-authority 20 May 2009 following referral of the matter collaboration, as mentioned in the preamble to by the Prime Minister. and Article 133(3) of the constitution, when In practice, the Polish cabinet usually performing their duties and exercising their determined the make-up of its delegation and competences. It found that the President could the position it would adopt. The Prime Minister not take decisions on foreign policy by himself, generally headed up the delegation, except in though he was entitled to decide to attend the rare cases where the cabinet felt that the European Council summit if he felt that his President was competent to do so, given the attendance was justified in the light of his subject under discussion at the European duties as president. If the President attends a Council summit. The problem arose when the European Council summit, he must work President expressed his wish to take part in the together with the Prime Minister and the summit and went there, despite the position minister responsible for the summit’s subject in adopted by the cabinet. the aim of guaranteeing the uniformity of

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Court of Justice, which views a cartel as a actions taken in Poland’s name within the “single continuing agreement”, the Nejvyšší context of the country’s relations with the správní soud found that the change in European Union and its institutions. Moreover, jurisdictio that arose from the Czech Republic cooperation between the President, the Prime joining the European Union put an end to the Minister and the minister responsible for the anti-competitive actions taking place on summit’s subject would enable the President to national territory, which were punishable give his opinion on the position adopted by the under the national jurisdictio only. The cabinet and, if necessary, determine the form continuation of this same anti-competitive and extent of his participation in the European behaviour after the Czech Republic joined the Council summit in question. European Union formally constitutes a separate offence – a contravention of The Constitutional Court concluded that it fell Community law – and thus falls within the to the cabinet to adopt Poland’s position, which joint competence of the national competition would then be presented to the European authority and the European Commission, with Council by the Prime Minister or the minister the European institution taking precedence. On responsible for the subject. this basis, the high administrative court concluded that the ne bis in idem principle had Trybunał Konstytucyjny, order of 20 May 2009, not been violated, since the continuing cartel Kpt 2/08, Orzecznictwo Trybunału in question should be considered as having Konstytucyjnego, Zbiór Urzędowy, seria A, ceased its activities in Czech national territory 2009, Nr 5, poz. 78 www.trybunal.gov.pl as soon as the national authorities and courts IA-31675-A no longer had exclusive competence in the [MKAP] matter, that is, when the Czech Republic joined the EU.

Czech Republic The Nejvyšší správní soud therefore threw out the decision made by the lower court, which Competition – Cartel created before the Czech had applied the ne is in idem principle and Republic joined the European Union and referred the dispute to the Nejvyšší správní disbanded after the Czech Republic became an soud. By its decision of 11 December 2009, EU member – Competence of the national Brno Regional Court asked the European competition authority to penalise the cartel in Court of Justice to make a preliminary ruling question for its activities in the period before on this legal issue (C-17/10). EU membership – Compliance with the ne bis in idem principle Nejvyssi správní soud, judgment of 10 April 2009, 2 Afs 93/2008-920, available at In its judgment of 10 April 2009, the Nejvyšší this web address: správní soud (Higher Administrative Court) www.nssoud.cz/main.aspx?cls=AnonymZneniLi found that the national competition authority st was competent to impose penalties for an infringement on competition law committed IA/32233-A before the Czech Republic joined the European [PES] [VMAG] Union, even though the anti-competitive behaviour in question continued after the country became an EU member. - - - - - In the case in point, those involved in the cartel (which was created by an agreement in 1988) were punished by the European Commission for the offence, which continued Treaty of Lisbon – Checking constitutionality after the Czech Republic had joined the before ratification – Conformity of the Treaty European Union. The national competition and its contested provisions with Czech authority then prosecuted the cartel members constitutional order for the same unlawful behaviour which took place before the country’s membership of the In its judgment of 3 November 2009, which EU. Referring to the case law of the European was its second judgment to deal with the

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Treaty of Lisbon, the Ústavní soud Firstly, ruling on the merits of the case, the (Constitutional Court) confirmed that the Ústavní soud threw out the argument that the various individual provisions of the Treaty, the Treaty of Lisbon goes against the principles of Treaty as a whole and the Treaty’s ratification non-retroactivity because EU authorities could conformed to Czech constitutional order. modify the Treaty to correct mistakes. According to the Ústavní soud, any linguistic The Ústavní soud had been asked to rule on changes made would have to be published in the case in point by the Senate (the second the Collection of International Treaties of the chamber of the Czech parliament) once more Czech Republic for them to come into force. supported by Václav Klaus, President of the Moreover, such changes are always performed Czech Republic. The Senate held that the through protocols that must be approved by all Treaty of Lisbon and certain contested State parties. provisions were not compatible with the Czech Republic’s constitutional character as a Secondly, with regard to the argument that the state governed by the rule of law because the Treaty is not clear enough, the Ústavní soud Treaty was not clear enough, violated the underlined that the Treaty of Lisbon is an principles of non-retroactivity, political international treaty governing the very neutrality and legitimate expectations and foundations of the European Union, so it is not infringed on the sovereignty of the Czech possible to subject it to requirements such as Republic. The democratic deficit was also those developed by the Ústavní soud for mentioned. national rules and regulations.

In this judgment, the Ústavní soud ruled on the Thirdly, with regard to the issue of democratic entire Treaty of Lisbon and various provisions deficit, the Ústavní soud referred to its of the Treaty on European Union and the judgment of 26 November 2008 and mentioned Treaty on the Functioning of the European the possibility of giving representatives of the Union that had not been covered in its first Member States a “special mandate” for judgment on Treaty of Lisbon, which it negotiating within the European institutions and handed down on 26 November 2008 (see boosting the role of the national parliaments as Reflets no. 1/2009, IA/31356-A [only defined in the Treaty of Lisbon. The court also available in French]). From a procedural point stated that Article 1(10) of the Treaty on of view, the court explained its assessment of European Union, according to which the the judgments it made as part of the procedure functioning of the Union is based on ensuring that an international treaty conforms representative democracy, refers to procedures with constitutional order before its ratification at both European level and national level and with regard to the exceptio rei iudicatie and mentioned that these are interdependent, so the drew the conclusion that there were no longer European Parliament does not bear exclusive any formal barriers to the ratification of the responsibility for the democratic legitimacy of Treaty of Lisbon. Moreover, the Ústavní soud its decisions. took the opportunity to give its opinion on the timeframes involved, saying that generally, Fourthly, the Ústavní soud did not find proceedings should be launched and the treaty anything in the aims of the EU, as listed in in question ratified quickly after their Article 3 of the Treaty on European Union, that conclusion, which did not happen in this contradicts the principle of the political particular case neutrality of the Czech Republic. It pointed out that the Czech constitution is not based on With regard to the appellant’s request to neutral values. In fact, the constitution focuses define “the material limits of the transfer of on certain ideas that express the fundamental, powers to the EU”, the Ústavní soud deemed inalienable principles of a democratic society, that it was not competent to draw up a list of so the values upon which Czech constitutional non-transferrable powers, given its position order is based are compatible with the aims of within the constitutional system. This the EU. concerns political decisions that are taken by the legislator, so the Ústavní soud can only Fifthly, with regard to the argument that the check them after they have been made at sovereignty of the Czech Republic is being political level. infringed upon, the Ústavní soud referred to its first judgment on the Treaty of Lisbon again, stating that in a modern democratic state,

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sovereignty does not constitute an end in itself. honour the existing procedure, which is also a Rather, it is a way of achieving the result of international legal requirements fundamental values supporting a state based relating to the right to revoke treaties, on the rule of law. The voluntary transfer of conforms fully with Czech constitutional order. certain powers, undertaken with the It is therefore incorrect to claim that “the participation of the state in question and in withdrawal of powers” is necessarily subject line with predetermined rules, does not to consent by the EU. On the contrary, the weaken sovereignty. In fact, such a transfer procedure in question strikes a balance may strengthen sovereignty as it will further between the Czech Republic’s need for the common progress of the organisation into sovereignty and its obligation to honour the which the State is integrating. Besides, the commitments it assumed, along with the other Czech Republic showed its agreement with Member States. this concept of shared sovereignty when it submitted its request to join the EU. The All that remains is to note that none of the Ústavní soud adopted this standpoint in its judges in the plenary assembly (which, in the examination of the appellant’s arguments case in point, exceptionally brought together concerning the gradual creation of a European all fifteen judges) expressed a dissenting defence policy, measures to manage the flow opinion, which was also true of the first case of migrants and cooperation in penal matters. on the Treaty of Lisbon. Furthermore, this case was examined under summary Sixthly, the Ústavní soud deemed the proceedings, so the judgment was handed requirement for European commitment, by down just five weeks after proceedings were virtue of Article 17(3) of the Treaty on launched. The judge-rapporteur was the European Union, to be legitimate and president of the Ústavní soud. compatible with the principle of equality, since Commission members carrying out their duties in the general interest of the EU must be Ústavní soud, judgment of 3 November 2009, faithful to the EU’s interests and aims, which Pl. ÚS 29/09, available at this web address: are completely compatible with the values on www.nalus.usoud.cz/Search/Search.aspx, which Czech constitutional order is based. English version available at this web address: www.concourt.cz/view/726 Seventhly, the Ústavní soud also rejected the IA/32234-A argument that greater cooperation would go [PES] [VMAG] against the principle of democracy and infringe on the sovereignty of the Czech Romania Republic, emphasising that such cooperation is a legitimate way for states to exercise their Fundamental rights – Law transposing sovereignty as subjects of international law. Directive 2006/24/EC of the European Moreover, the contested provisions allow the Parliament and of the Council of Czech Republic’s constitutional bodies, 15 March 2006 on the retention of data including the two chambers of Parliament, to generated or processed in connection with decide if, when and how the Czech Republic the provision of publicly available electronic will participate in such cooperation in future. communications services – Unconstitutionality – Continuous nature of Eighthly, with regard to the procedure for the requirement to retain data and lack of withdrawing from the EU, which, according to sufficient, appropriate guarantees protecting the appellant, contravenes the principle of people from arbitrary application of the law – sovereignty, the Ústavní soud pointed out that Violation of the right to personal, private and this principle does not mean that states can family life, secrecy of correspondence and arbitrarily violate existing international freedom of expression commitments. However, the obligation to

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stipulate that, with a court’s authorisation, data In a judgment of 8 October 2009, the on a single person and a single event may be Romanian Constitutional Court ruled on the stored and intercepted for a period of no more constitutionality of law 298/2008 transposing than 120 days. The Constitutional Court the provisions of Directive 2006/24/EC of the believed that this would give rise to a constant European Parliament and of the Council of limitation of the ability of natural and legal 15 March 2006 on the retention of data persons (to whom the law applies) to exercise generated or processed in connection with the their rights to personal, private and family life provision of publicly available electronic and secrecy of correspondence, without any communications service. connection to a defined event or cause but in the overall aim of generally preventing or The law, which applies to traffic and location discovering serious crimes. While the data and the related data required for identifying Constitutional Court admitted that the data in the subscriber or user, establishes the obligation question were technical and that the law did not for electronic service providers to keep such apply to the content of messages, it nonetheless data and, if necessary, make them available to stressed that the lack of a legal definition the competent authorities for the purposes of outlining the concept of “related data required criminal prosecution for serious crimes. for identifying the subscriber or registered user” paved the way for abuses and arbitrariness in The Constitutional Court found that this law data retention and use. The same risk could was likely to affect the exercise of certain result from a lack of clear criteria defining human rights and fundamental freedoms “threats to national security”, for the prevention guaranteed by the Romanian constitution (albeit of which the law grants the competent indirectly), namely the right to personal, private authorities access to data. The Constitutional and family life, as well as secrecy of Court held that without clear criteria and correspondence and freedom of expression. The references, even everyday activities could be Constitutional Court based this conclusion on viewed as ‘threats’ and the people to whom the evidence relating to several aspects, some of law applies could find themselves classed as which stemmed from the requirements set out being under suspicion, without their knowledge. by the directive itself and others of which (the larger group) stemmed from flaws in the Moreover, the Constitutional Court found that directive’s transposition, particularly with the law interfered too much with the rights of regard to the law’s outlining and definition of the person to whom a message was addressed. certain concepts. As the law transposes an EU In this case, the identification and retention of directive, the Constitutional Court reiterated that data would not only affect the message’s author, the Romanian legislator is free to determine the but also its addressee, who, as the passive actual methods and solutions it will use to receiver of the message, would have the law achieve the result required by Community law, applied to them as a result of the will of the while taking account of the particular features sender, who may have sent the message and actual situation at national level. However, improperly or with malicious intent, and in this case, the lack of clear definitions could through no desire of their own. result in abuse in the domain of data retention, as the law could not meet the conditions of Consequently, the Constitutional Court declared foreseeability or clarity or fulfil the requirement the entire law unconstitutional given the lack of for proportionality in breaches of fundamental sufficient, appropriate guarantees protecting rights. people from the risk of improper, arbitrary use of traffic and location data, bearing in mind both In the Constitutional Court’s view, retaining the continuous nature of the requirement to data over a six-month period (the minimum retain these data and the lack of clear definitions duration set down by the directive) establishes a and criteria outlining the concepts used in the continuing requirement that targets everyone, law. regardless of whether they have committed offences or are subject to criminal prosecution. Curtea Constituţională a României, judgment With a court’s authorisation, it will be possible no. 1258 of 8 October 2009, published in the to use such data for a period in the past rather Romanian Official Gazette on than a period in the future. The Romanian Code 23 November 2009, www.ccr.ro of Criminal Procedure’s rules in this matter

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United Kingdom referred to as “the ECHR”), which concluded that the decision did not breach the European European Convention on Human Rights – Convention on Human Rights (hereafter Right to respect for private life – Ban on referred to as “the Convention”) (appeal no. assisted suicide – Violation of Article 8 of the 2346/02). Convention – Justification – Requirement to publish the guidelines on prosecution of the In the appeal lodged with the House of Lords, crime the appellant claimed that the ban on assisted suicide infringed on her right to respect for On 30 July 2009, in one of its last judgments private life, which is enshrined in Article 8 of before transferring its judicial functions to the the Convention. This argument was rejected in Supreme Court, the House of Lords asked the the judgment in the Pretty case on the grounds authority responsible for prosecution to clarify that Article 8 did not confer a right to decide the law on assisted suicide following the request when and how to die. Conversely, the ECHR of a British citizen demanding the right to end found that preventing a person from avoiding an her life in Switzerland, with her husband’s help, undignified and distressing end to their life may without her husband being prosecuted. This engage Article 8. judgment marks a reversal of the House of Lords’ case law in the matter of assisted suicide. The House of Lords, when asked to rule on the matter, unanimously decided to reverse its old The appellant, Ms Purdy, who was 46 years old case law and find that Ms Purdy could refer to at the time, has suffered from multiple sclerosis her right to respect for private life to demand the since 1995. She feared that one day, her publication of guidelines on the prosecution of condition would deteriorate to a point where assisted suicide. In Lord Hope’s opinion, her quality of life would be intolerable and she making national case law compliant with the would be completely dependent on her husband convention would entail taking account of the and thus expressed the desire to go, with her fact that dignity and freedom are the very husband’s help, to one of the many Swiss essence of the Convention and that the concept clinics legally providing medically assisted of quality of life takes on great significance suicide. However, she wants her husband not to under Article 8. Be that as it may, Lord Hope be prosecuted upon his return to England. In also found that the ban’s interference with both England and Wales, assisting suicide is respect for private life would be justified under classified as involuntary homicide under the Article 8(2) of the Convention if the DPP issued Suicide Act 1961 and is punishable by a guidelines satisfying the requirements of maximum of fourteen years’ imprisonment. foreseeability and public accessibility resulting from the case law of the ECHR. The 1961 Act provides that those assisting suicide may only be prosecuted with the On 23 September 2009, the DPP published approval of the Director of Public Prosecutions guidelines detailing the circumstances under (hereafter referred to as “the DPP”), who is also which a person could be prosecuted for assisting responsible for issuing guidelines defining the the suicide of a friend or family member. circumstances under which a person may be Generally speaking, those helping a friend or prosecuted. Since the DPP rejected Ms Purdy’s family member to commit suicide are unlikely request for such guidelines, she lodged an to be prosecuted if their actions are motivated appeal with the aim of forcing him to issue by compassion and if the wishes of the person guidelines. This appeal was rejected by the intending suicide are clear. However, High Court, then by the Court of Appeal, which prosecution is likely if the person intending stated that Parliament was responsible for suicide is aged under 18. The draft version of clarifying the law on this point. The Court of the guidelines has undergone public Appeal also held that it was bound by the consultation and the DPP plans to publish the judgment made on 29 November 2001 in the final version in March 2010. It is important to Pretty case, whereby the higher court confirmed note that these guidelines will only apply to the DPP’s decision not to guarantee the England and Wales, since Scotland and applicant that her husband would be immune Northern Ireland have their own laws governing from prosecution if he helped her to commit such matters. suicide. The Pretty case was also referred to the European Court of Human Rights (hereafter House of Lords, judgment of 30 July 2009, R (on the application of Purdy) v Director of

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Public Prosecutions [2009] UKHL 45 the Chief Justice can only be removed from www.bailii.org office following a decision by the Governor, taken on the recommendation of the JCPC. IA/31683-A The dismissal procedure may only be launched if a tribunal of inquiry appointed by the [PE] [SOHA] Governor duly notes any inability on the part - - - - - of the Chief Justice to discharge the functions of his office or any misbehaviour on his part. Constitutional law – Removal from office of Upon receipt of the complaint, the Governor the most senior magistrate in Gibraltar began the relevant procedure and appointed a tribunal made up of three former judges of the In the opinion issued on 12 November 2009, House of Lords. The Chief Justice was the Judicial Committee of the Privy Council suspended while awaiting their findings. (hereafter referred to as “the JCPC”) recommended that the most senior magistrate After collecting the relevant witness in the Gibraltar judicial system be removed statements, the tribunal submitted its report to from office due to his inability to discharge the the Governor on 12 November 2008. This functions of his office. report was very critical of the Chief Justice, asserting that his behaviour damaged the The Governor of Gibraltar appointed dignity of his office and noting that he tended Mr Schofield as Chief Justice of Gibraltar in to overreact to perceived slights. The case was 1996, in line with the Queen’s instructions. then referred to the JCPC. Mr Schofield thus became head of the Gibraltar judiciary and sat on both the The JCPC, which was made up of six Supreme Supreme Court and the Court of Appeal of the Court judges plus the Chief Justice of England territory. In April 2007, a group of lawyers, and Wales, ruled by four votes to three that including almost all those with the rank of Mr Schofield should be removed from office. Queen’s Counsel in Gibraltar, lodged a The court believed that it would be appropriate complaint with the Governor, asking him to to investigate whether Mr Schofield’s begin the procedure to remove Mr Schofield behaviour directly affected his ability to from office. The signatories confirmed that discharge the functions and carry out the they had lost confidence in his ability to duties of his office, whether it affected others’ discharge the functions of his office and that perception of his abilities to perform these they have noticed some behaviour on his part functions and duties, whether keeping the that, in their opinion, called into question his Chief Justice in office would be inimical to the independence and impartiality. due administration of justice in Gibraltar and whether the Chief Justice’s behaviour had The complaint was lodged following the Chief brought the office of Chief Justice into Justice’s response to the introduction of a bill disrepute. In this case, the concept of ‘inability to reform Gibraltar’s judiciary. The law, which to discharge the functions of office’ must be was adopted in 2007, removed the Chief interpreted rather broadly to encompass Justice’s role as head of the judiciary in inability caused by certain character flaws. In Gibraltar, a move that was contested by this respect, the actions of Mr Schofield and Mr Schofield on the basis that it harmed his wife made Mr Schofield’s position judicial independence. His wife then accused untenable. The JCPC therefore recommended the Prime Minister of having introduced that the Chief Justice be removed from office, reforms that constituted an attempt to violate and the Governor gave the relevant order on the constitution of Gibraltar. She also wrote a 18 November 2009. letter to the Chairman of the Gibraltar Bar asserting that the sole purpose of the reform Judicial Committee of the Privy Council, was to force her husband’s resignation. opinion of 12 November 2009, Hearing on the Mr Schofield supported his wife when, after report of the Chief Justice of Gibraltar [2009] having criticised the members of the Bar, she UKPC 43, www.bailii.org launched a libel action against its Chairman. IA/31684-A

Under the constitution of Gibraltar (see Reflets [PE] no. 2/2007, p. 27 [only available in French]),

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heard in a jury trial or not. The KC found that accused criminals in regions of Russia where 2. Non-EU countries the jury system was already being implemented at the time of the 1999 judgment could not be given unequal treatment when compared to accused criminals in the rest of Russia the country.

Constitutional law – Death penalty – However, as of 1 January 2010, the jury Moratorium imposed by the Constitutional system will be implemented in the Chechen Court until jury trials are implemented – Republic, the only Russian region that does Possible to apply the death penalty when not yet hold jury trials. According to the 1999 there are jury trials throughout the judgment, this would put an end to the Federation – Rejection – Unlimited extension moratorium on the death penalty. of the moratorium in view of the obligations th resulting from having signed the 6 Protocol The BC asked the KC to rule because it of the European Convention on Human assumed that from 1 January 2010, the fifth Rights point of the pronouncement of the 1999 judgment would create a contradictory Having been asked by the Верховный Суд practice when it came to applying the death Российской Федерации (Supreme Court of penalty. The BC believed that this ambiguity the Russian Federation, hereafter referred to arises from the fact that in 1997, the Russian as “the BC”) to interpret the fifth point of the Federation agreed to abolish the death penalty pronouncement of its judgment of in peacetime by signing the 6th Protocol to the 2 February 1999 (hereafter referred to as “the Convention for the Protection of Human 1999 judgment”), namely that it would be Rights and Fundamental Freedoms. The possible to apply the death penalty in Russia abolition of the death penalty was a condition from 1 January 2010, the Конституционный for Russia’s membership of the Council of Суд Российской Федерации (Constitutional Europe. Notwithstanding the fact that the Court of the Russian Federation, hereafter Duma has not yet ratified the Protocol, referred to as “the KC”) declared in its order considering abolition of the death penalty to of 19 November 2009 (hereafter referred to as be premature for the country (Russia is the “the 2009 order”), that the death penalty could only one of the Council of Europe’s 47 no longer be applied in Russia. Member States not to have ratified the Protocol), and in accordance with Article 18 The Russian Constitution allows for the death of the Vienna Convention on the Law of penalty to be applied, though it classifies it as Treaties, Russia must respect the rules set an exceptional punishment that may only be down in the 6th Protocol, even before ratifying applied until its abolition. The Constitution it. This means that from the date it signed the also sets down the right of accused criminals 6th Protocol, Russia has not been entitled to who may face the death penalty (hereafter apply the death penalty or perform executions. referred to as “accused criminals”) to a jury trial. However, when the KC handed down the In answer to the question posed in the 1999 judgment, the jury system had not yet 2009 order, the KC referred to Russia’s been established in all regions of the Russian international obligations deriving from the Federation. legal documents mentioned above and worldwide development and trends. Consequently, in the fifth point of the pronouncement of the 1999 judgment, the KC, The KC also referred to established legal basing its decision on the principle of equality, practice since the entry into force of the declared that from the entry into force of the 1999 judgment. Russia has not executed 1999 judgment to the entry into force of a anyone since 1996 (though according to federal law guaranteeing that all accused information from the Council of Europe, the criminals throughout the whole territory of the Chechen Republic executed some people in Russian Federation would have their cases 1999). heard by a jury, the death penalty could not be applied, regardless of whether the case was Reflets no. 1/2010 A. Case law

The KC found that given the legal practice www.rg.ru caused by the long moratorium on the death penalty (10 years), robust guarantees have IA/31681-A been formed on the individual’s right not to be [LSA] punished by death. It also emphasised that international legal trends and the obligations Switzerland that Russia has adopted mean that Russia is irrevocably on the path to completely International agreements – EC-Switzerland abolishing the death penalty. Consequently, in Agreement on the free movement of persons the KC’s view, the death penalty cannot be – Right to move and reside freely within the applied, even after the establishment of the territory of Member States – Right of entry jury system across the whole of the Russian and residence for non-EU citizens who are Federation. family members of EU citizens – Right of residence for a spouse from a non-EU The KC therefore extended the moratorium country – Legal residence within the territory indefinitely, that is, until Russia decides to of a Member State required – Inadmissibility cease its participation in the 6th Protocol or until it modifies the provisions of its In a judgment handed down on Constitution to temporarily allow the death 29 September 20098, the Swiss Federal Court penalty. brought its case law into line with the recent case law of the European Court of Justice, and While many legal experts welcome the de more specifically the Metock judgment facto abolition of the death penalty, the (judgment of 25 July 2008, C-127/08, Rec. 2009 order (which was passed by sixteen votes p. 1-6241), by abandoning its old case law, to three) has been heavily criticised. The which was based on the judgment in the 2009 order is often viewed as correct from a Akrich case (C-109/01, Rec. p. I-9607). political viewpoint but dubious from a legal viewpoint. The dispute concerns a Palestinian’s request for a residence permit under family In particular, the KC has been criticised for reunification rules. Not only had the having gone beyond the limits of its Palestinian been residing in Switzerland competences and having interpreted elements illegally since his arrival in 1996 (having that were not present in the 1999 judgment. refused on several occasions to comply The 1999 judgment makes no mention of the decisions to expel him from Swiss territory), death penalty being incompatible with he had also been sentenced to a total of Russia’s international duties, nor does it 28 months’ imprisonment in 1998 and 2000 mention established practice on the application for narcotics-related offences. He served most of the death penalty in Russia. The judgment of this sentence and was released in 2001. did not even look at the fundamental issue of After his release, in 2008, he was convicted of the constitutionality of the death penalty. having illegally possessed arms in 2003. In the meantime, the Palestinian had married a In its 2009 order, the KC held that it had taken Spanish national who was resident in account of Russia’s international obligations Switzerland, so his request for a residence when it issued the 1999 judgment. However, permit was based on the right to family at the time the judgment was handed down, reunification. However, his request and the KC assumed that the issue of ratification subsequent appeals were rejected. would be resolved within a reasonable time frame, and certainly before the jury system In its judgment, the Swiss Federal Court first became established throughout the entire pointed out that it and the European Court of Russian Federation, so the intention of taking Justice shared competence in matters relating account of international obligations is not to the EC-Switzerland Agreement on the free reflected in the text of the 1999 judgment. movement of persons and stressed that to the extent that the Agreement involves concepts Конституционный Суд Российской from Community law, Switzerland had to take Федерации, judgment of 19 November 2009, account of the relevant case law of the no. 1314-O-P European Court of Justice from before the signature of the agreement. Reflets no. 1/2010 A. Case law

B. Practice of international The Federal Court then gave a brief overview of the European Court of Justice’s case law in organisations relation to the right to residence of a non-EU spouse, making special mention of the Akrich Human Rights Committee judgment in 2003 and the Metock judgment in 2008. International Covenant on Civil and Political Rights - Right to an effective recourse - Right Believing that there was nothing to justify the to liberty of movement - Right to leave a existence of two different systems of case law country, including one’s own - Right to a fair in the matter (one system of case law within trial - Principle of equality of arms the EU and a different system for the EU’s - Presumption of innocence - Reasonable time relations with Switzerland); the Federal Court frame for proceedings - Right to enforcement decided to modify its case law in line with the of remedies - Principle of legality of penalties - development of EU case law and to follow the Protection from arbitrary or unlawful rules set down in the Metock judgment. The interference with one’s privacy - Right to Federal Court was actually not required to do freedom of thought, conscience and religion - this, since the relevant decisions were made Right to freedom of association - Principle of after the signature of the EC-Switzerland non-discrimination - Violation of Article 12 Agreement on the free movement of persons, and Article 17 of the Covenant but it had already done so, for the same reasons, with regard to the Akrich judgment. In its findings delivered on 22 October 2008, the Human Rights Committee concluded that Consequently, the Federal Court stated that the Belgium had violated the International appellant should be given a residence permit Covenant on Civil and Political Rights (Articles for purposes of family reunification with his 12 and 17) with preventive measures aimed at Spanish wife, unless it could be shown that eradicating the terrorist threat. This is the first one of the exceptions provided for under time Belgium has been ‘condemned’ by the Swiss law, such as disturbance of public order Human Rights Committee. or endangerment of health or security, applied in his case. The case arose in the context of preventive However, the Federal Court found that none of measures designed to eradicate the terrorist these exceptions applied as since his release, threat. Since 1999, the United Nations Security the appellant has lived a stable life, has gained Council has issued a number of resolutions a good command of German, has found a job based on Chapter VII of the Charter of the and has not claimed welfare. With regard to United Nations, with a view to combating the the criminal acts committed by the appellant in threat of terrorism. A Sanctions Committee has the past, the Court felt that a certain period of been set up to maintain, on the basis of the time had passed since the narcotics-related information communicated by States, a list of offences and that the offence related to illegal individuals and entities associated with Osama possession of arms was not especially bin Laden, the Al-Qaida network and the significant. As a result, the Federal Court Taliban. These resolutions oblige States to ordered that the appellant be granted a Swiss block the funds of the persons and entities residence permit. included on the list, and to limit their movements on national territory. Bundesgericht, judgment of 29 September 2009 In the wake of the attacks on 11 September 2C_196/2009, 2001, the plaintiffs, Mr Sayadi, a Lebanese www.bger.ch national who obtained Belgian nationality in 2001, and Ms Vinck, a Belgian national who IA/32473-A converted to Islam, were suspected of [CHEE] belonging to the Al-Qaida movement. On the basis of the said Security Council resolutions and of the European Union Council Regulation No. 881/2002, a criminal investigation of the plaintiffs was initiated in September 2002. On 19 November 2002, Belgium informed the

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Sanctions Committee that the plaintiffs were, in unacceptable interference in their private respectively, the director and secretary of lives, contrary to Article 17 of the Covenant, in Fondation Secours International, reportedly the relation more specifically to their honour and European branch of the Global Relief reputation. It held that the dissemination of Foundation (GRF), an American association personal information about the plaintiffs that has been on the sanctions list since constituted an attack on their honour and 22 October 2002. Following this reputation, in view of the negative associations communication by the Belgian authorities, the that some people might make between their plaintiffs’ names were placed on the list. As a names and the title of the sanctions list. result, their assets were frozen and they were prohibited from leaving Belgium. The This ruling that there had been a twofold plaintiffs’ accounts and financial income were violation of the Covenant was based largely on blocked and their passports withdrawn. the fact that the plaintiffs continued to be subject to the contested measures restricting their freedom even though the criminal The plaintiffs brought an action before the investigation instituted against them had ended Brussels Court of First Instance, which on in a dismissal of the case in 2005 and that no 11 February 2005 ordered the Belgian State to charge had been brought against them. The request that the Sanctions Committee remove fact that the Belgian State did not have the their names from the list. The Belgian State power itself to remove the plaintiffs’ names complied with this ruling, but no decision was from the UN list did not diminish its taken by the Sanctions Committee and the responsibility. In the Committee’s view, the plaintiffs’ names remained on the list. The responsibility of the Belgian State was raised Judge’s Chambers of the Brussels Court of First directly since it had communicated the identity Instance also confirmed the plaintiffs’ of the plaintiffs to the Sanctions Committee, innocence, dismissing the case on 19 December without due consideration. 2005 after more than three years of criminal investigation. As a last resort, the plaintiffs instituted proceedings against the Belgian State in the Human Rights Committee. Communication No. 1472/2006 ‘Sayadi and Vinck’ www://tb.ohchr.org/default.aspx

The plaintiffs alleged violations of their right to [SEN] an effective remedy, their right to travel freely, their right not to be subject to unlawful attacks World Trade Organisation on their honour and reputation, the principle of legality of penalties, respect for the presumption of innocence and their right to Definitive anti-dumping measures on certain proceedings that afford structural guarantees. iron or steel fasteners from China - Complaint brought by China In the case in point, the Committee considered On 26 January 2009, the Council adopted the compatibility with the Covenant of the Regulation (EC) No. 91/2009 imposing a national measures taken to implement the definitive anti-dumping duty on imports of United Nations Security Council resolution. As certain iron or steel fasteners originating in the regards the substance of the case, the People’s Republic of China. As a result, Committee concluded that the Covenant had definitive anti-dumping duty of up to 85% was been violated twice. Firstly, it held that the imposed on dozens of Chinese companies for a travel ban, and more specifically the prohibition five-year period. Subsequently, a number of on leaving Belgium which had been imposed these companies brought actions for annulment on the plaintiffs, represented an unjustified before the Court of Justice. These were Ningbo restriction of the right to travel freely as Yonghong Fasteners (action brought on enshrined in Article 12 of the Covenant. In the 10 April 2009, T-150/09), Würth and Fasteners Committee’s view, the facts did not show that (Shenyang) (action brought on 24 April 2009, said restriction of the plaintiffs’ right to leave T-162/09), Shanghai Biaowu High-Tensile the country was necessary to protect national Fastener and Shanghai Prime Machinery (action security or public order. The Committee then brought on 24 April 2009, T-170/09) and held that the placement of the plaintiffs’ Gem-Year and Jinn-Well Auto-Parts names on the Sanctions Committee list as a (Shejiang) (action brought on 24 April 2009, result of the actions of the State party resulted T-172/09). Reflets no. 1/2010 A. Case law

In addition, on 31 July 2009 China requested Constitutional Court consultations with the European Communities (Bundesverfassungsgericht) of 30 June 2009 (cf. regarding the said Regulation as well as Reflets No. 2/2009, p. 3 [only available in Article 9(5) of Council Regulation (EC) French]), in which the No. 384/96 (core anti-dumping regulation) Bundesverfassungsgericht ruled that the act within the framework of the World Trade ratifying the Lisbon Treaty was compatible Organisation (WTO). China claimed that the with the German constitutional order, but at the provisions were, inter alia, incompatible with same time demanded a strengthening of the the obligations of the European Communities participation of national legislative bodies in under provisions of the WTO Agreement, the the European integration process. 1994 General Agreement on Tariffs and Trade According to the IntVG, Germany’s consent to (GATT) and the Anti-Dumping Agreement Community acts is subject, in the cases listed (Agreement on Implementation of Article VI in the Act, to the approval of the national (anti-dumping measures) of GATT). parliament. For example, as regards a These consultations having failed, on simplified revision procedure for the Treaty 12 October 2009 China requested the (Article 48(6), TEU), approval of the revision establishment of a panel. In the absence of must be enshrined in a law passed by the opposition from the European Communities, German parliament. As regards acts based on the Dispute Settlement Body agreed to this the bridging clauses, namely Article 48(7) request at its meeting on 23 October 2009. TEU and Article 8(3)(2) TFEU, approval or Canada, India, Japan, Chinese Taipei and the abstention by the German government United States reserved their third-party rights. representative in the Council requires a law to Subsequently, Brazil, Chile, Colombia, Norway, that effect to have been passed by the German Thailand and Turkey reserved their third-party parliament in advance. Moreover, the same rights. On 30 November 2009, the European applies to implementation of the flexibility Communities requested the Director-General clause (Article 352 TFEU) and of to determine the composition of the panel. On Article 83(1)(3) TFEU concerning the 9 December 2009, the Director-General enlargement of EU competences in the domain composed the panel. of criminal law.

WT/DS 397: European Communities – Integrationsverantwortungsgesetz (Article 1 of Definitive anti-dumping measures on certain the Gesetz über die Ausweitung und Stärkung iron or steel fasteners from China, der Rechte des Bundestages und des www.wto.org Bundesrates in Angelegenheiten der [CHEE] Europäischen Union, Bundesgesetzblatt I Nr. 60, Seite 3022), www.bundesgesetzblatt.de

C. National legislation [TLA] Belgium Germany Taxation of savings income and exchange of Act on the participation of the national information parliament in the process of European integration Under the law of 17 May 2004 transposing into Belgian law Council Directive On 25 September 2009, the Act on the 2003/48/EC on taxation of savings income, Exercise by the Bundestag and by the Belgium (in common with Austria and Bundesrat of their Responsibility for Luxembourg) benefited from a transitional Integration in Matters concerning the regime enabling it to retain its banking secrecy European Union (Gesetz über die for a few more years. Belgium could therefore Wahrnehmung der Integrationsverantwortung refrain from exchanging information on des Bundestages und des Bundesrates in savings income covered by the Directive (i.e. Angelegenheiten der Europäischen Union, income of non-residents) while applying Integrationsverantwortungsgesetz – ‘IntVG’) withholding tax to such income at a rate entered into force. increasing progressively to 35%. This transitional regime was revoked on 1 January This act transposes the requirements resulting 2010, pursuant to the Royal Decree of from the judgment by the German 27 September 2009. Henceforth, Belgium will Reflets no. 1/2010 A. Case law automatically exchange information and will on the Court of Arbitration, Moniteur disclose to the State of residence of the belge/Belgisch Staatsblad, 31 July 2009, p. recipient of the income the first and last names, 51617 date and place of birth, full address and bank account number(s) of the recipient, together [CREM] with the amount of interest received by the Lithuania latter. Royal Decree implementing Article 338(a)(2) Amendment of the Law on the Protection of of the 1992 Income Tax Code (Code des Minors against the Detrimental Effects of impôts sur les revenus/ Wetboek van de Public Information inkomstenbelastingen), Moniteur belge/Belgisch Staatsblad, 1 October 2009, p. On 14 July 2009, the Seimas (Parliament of 65609 the Lithuanian Republic) passed a law amending the Law on the Protection of Minors [CREM] against the Detrimental Effects of Public Information. The law, which is due to enter into force on 1 March 2010, stipulates inter alia New obligation of prior referral to the that it is prohibited to “directly disseminate to Constitutional Court minors” any public information whereby A special law of 12 July 2009 made an “homosexual, bisexual or polygamous relations important amendment to the special law of are promoted”, because it has “a detrimental 6 January 1989 on the Court of Arbitration effect on the development of minors”. (Cour d’arbitrage/Arbitragehof - now known In so doing, the Seimas rejected the veto which as the Constitutional Court (Cour the President of Lithuania had issued against constitutionnelle/Grondwettelijk Hof)), with the law of 14 July. The President felt that the the aim of ensuring uniformity in the criteria used to judge whether public interpretation and application of national law by information was detrimental to minors’ the various Belgian courts. Henceforth, development were vague and legally unclear, Article 26 of the special law on the Court of which could have led to controversial Arbitration states, in a new paragraph 4, that, interpretations. “when it is claimed before a court that a law […] violates a fundamental right guaranteed in The law of 14 July was widely discussed at entirely or partially the same way by a national and Community level. provision of Title II of the Constitution and by a provision of European or international law, On 17 September 2009, the European the court must first refer a preliminary question Parliament adopted a resolution on the law in to the Constitutional Court regarding question. Reaffirming the importance of the compatibility with the provision of Title II of European Union (EU) fighting against all the Constitution.” However, this obligation forms of discrimination, and in particular does not apply in the cases exhaustively listed discrimination based on sexual orientation, the in the law, most notably when the European Parliament asked the EU Agency for Constitutional Court has already ruled on a Fundamental Rights to give an opinion on the question or an appeal on the same subject, when law and the amendments in the light of the EU the court considers that the provision of Title II Treaties and EU law. However, in its response of the Constitution is clearly not violated, or dated 10 November 2009, the Agency said that when the court finds that a judgment handed it lacked the competence to undertake such a down by an international court or by the task. Constitutional Court demonstrates that the provision of European law, international law or The new President of Lithuania, having signed Title II of the Constitution is clearly violated. the law of 14 July, set up a working group to Although this provision says nothing about the examine possible changes to the law. possibility of direct referral to the Court of Finally, on 22 December 2009, the Seimas Justice, it nonetheless raises questions about its adopted the amendments to the law of 14 July practical application and its compatibility with 2009, which, like the law itself, will enter into Article 267 TFEU (formerly Article 234 EC). force on 1 March 2010, and which no longer refer to homosexual relations. Under these Special law of 12 July 2009 amending amendments, public information “which Article 26 of the special law of 6 January 1989 encourages the exploitation of and sexual

Reflets no. 1/2010 A. Case law violence against minors and sexual relations of Criminal Code. A radical restructuring was minors”, information “which encourages also required due to the imbalances created sexual relations”, information “showing a over time by the multitude of amendments and disrespect for family values and encouraging provisions contained in special criminal laws. another conception of marriage and the family than that contained in the Lithuanian [RUA] Constitution and Civil Code” are considered as having “a detrimental effect on the United Kingdom development of minors” and it is therefore prohibited to disseminate them to minors (with Reform of the system of parliamentary some exceptions such as dissemination for expenses education and other purposes expressly provided for by the law). On 21 July 2009, a new act reforming the expenses system for members of the House of Laws on the protection of minors against the Commons received royal approval. The law is detrimental effects of public information, the first attempt to reform a system that has (Žin., 2009, Nr. 86-3637; Nr. 154-6959) remained unchanged for a long time. www3.lrs.lt The act came about following the scandal [LSA] provoked in May 2009 by the publication in a daily newspaper of a series of articles revealing Romania in detail the amounts reimbursed to MPs at the taxpayer’s expense. One MP received over Publication of the new Criminal and Civil €34,000 for gardening expenses, including a Codes duck island, while another used public money to clean the moat of his mansion. The scandal of On 24 July 2009, the new Criminal and Civil the fraudulent expense claims degenerated into Codes, adopted respectively by laws No. 286 one of the gravest political crises of recent years, and No. 287 of 17 July 2009, were published in forcing the Speaker of the House of Commons Monitorul Oficial, the official journal of to resign for the first time in over 300 years. Romania. They will enter into force at a later date, as set down in the laws relating to their The scandal highlighted the inadequacy of the implementation. These laws will be put before system of parliamentary self-regulation of Parliament by the Government, within 12 expense claims as well as the laxness with months of the date on which the codes were which the office responsible for approving published. reimbursement applications applied the rules, which were in any case far from restrictive. To As soon as it enters into force, the new Civil restore public confidence in the political system, Code will replace the current code, which has the Prime Minister instituted a reform aimed at constituted the basic civil law since 1864, to establishing an independent authority for which it makes a series of important managing the expenses systems. amendments and revocations. Professor Flavius Baias notes in this connection that Romania was The main provision of the new act is therefore the only Eastern European country under the creation of the Independent Parliamentary communist rule to have retained a civil code Standards Authority (IPSA), a dating from pre-communist times. non-parliamentary body responsible for the payment of MPs’ salaries, and for setting up and The new Civil Code addresses the need to managing a new system of expenses based on adapt the basic civil law to contemporary the recommendations made by the Committee social realities. It establishes new civil law on Standards in Public Life, a non-ministerial institutions and introduces major changes, public body charged with promoting ethical restructuring and systematisation affecting standards in the political and administrative almost all areas (including in particular sphere. The IPSA is also tasked with preparing a obligations, property, personal and family law new code of conduct on MPs’ financial and a more uniform approach to civil and interests. commercial relations). The new act also creates the post of The same need to adjust to social and technical Commissioner for Parliamentary realities prompted the drafting of the new

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Investigations, whose task is to investigate legislation under which winnings from games abuses of the system where he has reason to of chance organised in other Member States believe that an MP has received a are treated as income of the winner chargeable reimbursement to which he or she is not entitled, to income tax, whereas winnings from games or has breached his/her obligations under the of chance conducted in the Member State in code of conduct on financial interests. An question are not taxable.” Given that Swedish investigation may be launched either at the legislation was identical to the Finnish Commissioner’s initiative or in response to a legislation in this area, the judgment in question complaint by a third party or at the MP’s own required the Swedish law to be amended, to request. The provisions relating to the which end a bill was drawn up making the Commissioner have not yet entered into force. provisions of the Swedish law compatible with Community law. The provisions affected by In addition, any MP who has supplied false or the amendment are Article 3 of Chapter 8 and misleading information with a view to Article 25 of Chapter 42 of the Income Tax reimbursement may be prosecuted. This offence Act. carries a maximum sentence of 12 months’ The new provisions of the Income Tax Act imprisonment and/or a fine. In the UK, mean that winnings from a foreign lottery parliamentary immunity does not extend to organised in another Member State of the EEA criminal offences, and MPs are treated like any are exempt from tax. Also, winnings from other citizen in this regard. premium bonds are exempt from tax on condition that the premium bond was issued Finally, it should be noted that the government by a Member State of the EEA. The exemption has recently announced its intention to amend from tax only applies to the EEA, as regards the law to abolish the role of the Commissioner winnings from games of hazard and winnings and transfer the latter’s powers to the IPSA. The from premium bonds. government also plans to transfer responsibility for managing the code of conduct from the For the tax exemption for foreign games of IPSA to Parliament. chance to apply, it must be determined that the These amendments are in line with the game of chance is arranged in a country that is recommendations issued by the Committee on a Member State of the EEA. In this connection, Standards in Public Life in its report on the preparatory documents to the law stipulate parliamentary expenses. that the place of residence of the game’s organiser is the determining factor. Games of The text of the Parliamentary Standards Act chance are generally strictly regulated in the 2009 is available at www.statutelaw.gov.uk Member States and a licence is usually required to organise such games. For those [PE] [SOHA] reasons, it was not deemed necessary to impose additional conditions on either Swedish lotteries Sweden or those organised in an EEA Member State, for the rules on exemptions to apply. Games of Taxation of winnings from a lottery organised chance operated on the Internet pose particular in an EEA Member State problems, not least because they often involve more than one country. To determine the In December 2008, the Swedish parliament country in which the game is organised, factors passed a law (2008:1322) amending the such as the country where the licence to Income Tax Act, Inkomstskattelagen organise the game was issued and the country (1999:1229), under which winnings from where the main activity is carried out, and in foreign games of chance and premium bonds particular where the activity is organised and are treated on equal terms with those from managed, must be examined and taken into domestic games of chance and premium bonds. account. The law, which entered into force on 1 January 2009, applies from the 2010 tax year onwards. Winnings from premium bonds do not require any additional controls since premium bonds The amendment to the Swedish law came in must be issued by an EEA Member State to response to the Lindman case (judgment of qualify for exemption. 13 November 2003, C-42/02, ECR I-13519), in which the Court of Justice stated that [LTB] “Article 49 EC prohibits a Member State’s

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D. Extracts from legal literature discrimination on the grounds of disability within the meaning of Directive […] 2000/78 benefits not only the disabled persons Discrimination by association on the grounds themselves but also those associated with them, of disability in European Union law who are, for that reason, the subject of unfavourable decisions or behaviour The Coleman judgment of 17 July 2008 constituting harassment on the part of their (C-303/06, ECR I-5603), “handed down by the employer” (Cavallini, J., “Une discrimination Court of Justice sitting as a Grand Chamber par association fondée sur le handicap est […] enshrines a potentially substantial contraire au droit communautaire”, La enlargement of the scope of the semaine juridique - éd. sociale, 21 October anti-discrimination legislation developed over 2008, p. 25), in the Coleman judgment the time by the European Union institutions” Court “incorporates [...] into Community law (Le-Barbier-Le Bris, M., “Protection pour la the notion of ‘discrimination by association’, mère d'un handicapé: la Cour de justice on the grounds of disability in this instance” reconnaît la ‘discrimination par association’”, (Le Barbier-Le Bris, M., op. cit., p. 883), RJS, 11/08, p. 883). “[If] most of the whose “legal identification appears for the first judgments handed down by the […] Court time in the conclusions of the Advocate pass members of the public by, and receive General Poiares Maduro” in the case in little or no attention in the mainstream media question (Boujeka, A., op. cit., p. 865) […], from time to time, the Court delivers a “Although the Court [...] does not use the judgment which makes headline news and exact expression, it enshrines the notion in an which captures the public’s attention. The approach which furthers Community Coleman case, concerning the question of protection of disabled persons and of those whether EC non-discrimination law prohibits close to them [...]. Moreover, the Coleman discrimination against an individual on the judgment is in line with the movement towards grounds that they associate with a disabled increased protection from discrimination for person, is one such case” (Waddington, L., disabled people, which was given a powerful Annotation on Case C-303/06, S. Coleman, boost by the United Nations Convention of 13 C.M.L.Rev., 2009, p. 665). “Just a week after December 2006 on the Rights of Persons with the Feryn judgment [judgment of 10 July 2008, Disabilities. [The Convention] is also the C-54/07, ECR I-5187]”, in which it partial inspiration for the proposal for a established that public statements made by an Directive of 2 July 2008 on implementing the employer in the course of a recruitment principle of equal treatment between persons procedure may constitute discrimination, even irrespective of religion or belief, disability, age in the absence of an identifiable victim, “the or sexual orientation” (ibid., pp. 865 and 867). Court reconsiders the notion of direct discrimination, a more controversial point, to The issue at stake in this case was “clearly judge by the reactions of the many Member substantial and the Member States were under States wishing to submit observations” no illusions about this, as evidenced by the (Driguez, L., “Lutte contre la discrimination fact that five governments saw fit to intervene en raison du handicap”, Europe, October 2008, [...]. [T]he Italian and Dutch governments in p. 27). particular [...] tried, following the example of the United Kingdom, to invoke case law of the “Just before the adoption of Directive 2000/78, Court itself, which [had] already had to rule on some authors were highlighting […] the discrimination on the grounds of disability in shortcomings of the future legislation, as the Chacon Navas case [judgment of 11 July regards the lack of precision on objectives and 2006, C-13/05, ECR1-6467; see Reflets no. means and the inconsistency of the 3/2007, p. 29 (only available in French)]. This Community in seeking to impose obligations case [having] led it to limit the notion of on the Member States without thinking to disability, which it did not extend to illness” comply with them itself [cf., in particular, (Le Barbier-Le Bris, M., op. cit., p. 884) “ – a Bocquillon, F. and Kessler, F., RDDS, 2000, p. position that was heavily criticised in the 187). [Although] some of these shortcomings literature – [...] the whole of this remain, disability is […] an opportunity for the argumentation was aimed at recommending a Court to inject new life into the fight against restrictive reading of the ratione personae discrimination” (Boujeka, A., “Le handicap scope of the right to non-discrimination and par association”, RDDS, No. 5/2008, p. 865, excluding disability by association” (Boujeka, to pp. 871-872). Finding that “the ban on

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A., op. cit., p. 870). The Court did not go broader sense” (Le Barbier-Le Bris, M., op. down this path. Without revising the strict cit., p. 884). “Moreover, the system within definition of disability adopted in the Chacon which the Directive is situated militates for a Navas case, it “makes it more specific by broader understanding of the notion of direct stating, in substance, that although the discrimination on the grounds of disability, judgment in question precludes illness from whether it be Article 13 of the EC Treaty, being considered a factor of discrimination which serves as the legal basis for the due to the exhaustive nature of the list in Directive and which gives the Community the Article 13 TEC and Directive 2000/78, such a power to combat all forms of discrimination, restriction ratione materiae in no way including on the grounds of disability, or the authorises a restriction ratione personae of the Community Charter of the Fundamental Social Directive” (ibid., pp. 870-871), nor does it Rights of Workers referred to in the 6th recital prohibit “a very broad conception of the of the Directive” (Driguez, L., op. cit., p. 27). notion of discrimination, to the point of including the concept of ‘discrimination by “The knock-on effect of discrimination by association’” (Le Barbier-Le Bris, M., op. cit., association could raise doubts as to its nature, p. 884). i.e. whether direct or indirect discrimination. Since the Directive, under certain conditions, “The solution proposed by the judgment is allows “the employer to sidestep the […] split into two parts. The first addresses prohibition on indirect discrimination […] the question of principle as to whether it is [the] issue at stake [was] important” (Cavallini, possible to recognise a prohibition on direct J., op. cit., p. 25). Having understood this fact, discrimination or harassment ‘by association’ and no doubt having wished to accord […]. The second is confined to the maximum protection to victims of this kind of circumstances of the case in question” discrimination, the Court held that this was (Broussy, E., Donnat, F. and Lambert, C., indeed “direct discrimination, and thus “Discrimination fondée sur le handicap”, absolutely prohibited, and not justifiable by AJDA 2008, pp. 2330-2331). “The Court any test of legitimacy or proportionality, since adopts a conventional approach. Far from discrimination is deemed to have taken place adhering to the wording of the obligations laid whenever a person is treated unfavourably on down, it adopts a teleological interpretation. the grounds of ‘a’ disability, not necessarily Since the Directive advocates the social his or her own” (Le Barbier-Le Bris, M., op integration of persons with a disability, it is cit., p. 884)). As to the “hypothesis of indirect necessary to sanction all forms of discrimination by association”, although this discrimination affecting this process […]. [I]f also remains “conceivable” (ibid.), the a worker is penalised professionally due to his Coleman judgment contains no indications in association with a disabled person, he suffers this respect. “One could argue that the Court indirectly the disadvantages linked to the should, given the opportunity, interpret the disability, whereas the Directive is intended to prohibition of indirect discrimination as eradicate such disadvantages. The prohibition covering those who experience discrimination must therefore be invocable by all persons on the grounds that they associate with a who are subject to a decision or harassment by disabled person - on the grounds that this their employer, even where it is based on the would be in line with the broad purpose of the disability of another individual” (Cavallini, J., [Directive], even though it would not be in op. cit., p. 25). “[W]hat matters, ultimately, is accordance with a literal interpretation of the that the disability is the grounds for and lever wording. However, this would probably be a of the discrimination, irrespective of whether rather ‘ambitious’ interpretation by the Court” the disability affects the worker himself or (Waddington, L., op. cit., p. 676). This is a somebody close to him. After all, the Directive point picked up by another author: “Moreover, is not intended to protect set categories of there would be a risk of further excesses in individuals but rather to prohibit the use of a protection from discrimination if one sought to number of discrimination grounds. Indeed, this extend the protection from disadvantage on the is the approach favoured by the Commission grounds of association to cases of indirect in its 2005 annual report on equality and discrimination. Apparently neutral rules, such discrimination […]. Just because the Directive as the core working hours of an operating unit includes a few provisions devoted exclusively –, which particularly disadvantage workers to disabled persons does not mean that the due to their association with a disabled person remaining provisions should not be read in a e.g. because the home care required by the

Reflets no. 1/2010 A. Case law third party in the early afternoon means that […] for all Article 13 EC grounds […] there the worker cannot work the hours in question are, in the background, at least two warning –, would meet the criteria for indirect bells which suggest one should be slightly discrimination. The ECJ did not need to cautious in claiming [this] […]. First, the address this issue in the Coleman judgment. It Court seemed to place a great deal of emphasis is right that an extension of protection against on the nature of the relationship between Ms. discrimination by association to these cases be Coleman and her son, and, in particular, the refused. Such an extensive interpretation of fact that she was his primary carer. Whilst the indirect discrimination would be barely Court certainly did not hold that the closeness reconcilable with the purpose of the Directive of the relationship, and the level of […] Moreover, it would no longer be covered dependency of the child, were determinant for by the wording of Directive, which is narrower finding that protection existed from in relation to indirect discrimination: it is not discrimination by association, a very narrow discrimination ‘on grounds of disability’ reading of the judgment could lead one to which is prohibited, but merely discrimination conclude that not all levels of association towards ‘persons with a particular disability’” would merit equal protection. If one were to (Leder, T., EWiR, 2008, p. 603, on p. 604). argue in favour of such an interpretation, one could perhaps find support in the fact that a “Following the conclusions of the Advocate limited number of EC Member States have General on this case, the promotion of chosen to prohibit explicitly discrimination by disability by association has been recognised association on the grounds of disability, whilst as the mark of a broad approach to the not paying similar attention to discrimination principle of equality promoted by Community by association on other grounds […]. Secondly, law, with some authors going so far as to if Coleman is to be read as also establishing a suggest that the [Court] should enshrine prohibition of discrimination on the grounds of discrimination by association not only in the sex, it sits uneasily with the […] earlier field of disability but also in relation to other judgment in Grant [judgment of 17 February discrimination factors (cf., in particular, 1998, C-249/96, ECR I-621] [where the Court] Omarjee, L. and Baron, F., “Dialogue autour held that EC law did not require an individual de l'égalité dans le droit social de l'Union with a same sex partner be treated in the same européenne”, LPA, No. 140, 2008, p. 7). It way as an individual with a heterosexual would appear that they have been fully heard” partner. Nevertheless […], it seems likely that (Boujeka, A., op. cit., p. 872), since the Coleman should be read as establishing the Coleman judgment “admittedly relates in the general principle, applicable to all EC equality present case to discrimination on the grounds directives, that direct discrimination and of disability, but it does of course have a harassment by association are prohibited. The broader calling to be applied to all levers of use of the same language, with all directives discrimination prohibited by Community law prohibiting discrimination ‘on the grounds’ of (Le Barbier-Le Bris, M., op. cit., p. 884; in the the relevant characteristic, rather than same vein, cf. also Leder, T., op. cit., p. 604). explicitly requiring that claimants possess that “At a conceptual level, Coleman lays the characteristic themselves, is the strongest groundwork for the future interpretation of argument in support of this position” discrimination [by association] also on the (Waddington, L., op cit., pp. 673-674). This other grounds listed in Article 13 EC. Thus, being said, the fact that the Court does not very soon discrimination by association will seem to have precisely defined the nature of also be discussed with regard to the suspect the relationship required to be able to invoke classifications such as sex, racial or ethnic the existence of discrimination by association origin, religion or belief, age or sexual does raise some questions. “The ECJ does not orientation. In this way Coleman might lead to rule on the scope of the protected third parties, a knock-on effect which provides for a reform so it is not clear how close the connection of anti-discrimination rules far beyond the between the employee and the person with the field of disability discrimination” (Toggenburg, disability must be. In fact, it only specifies that G., “Discrimination by association: A notion less favourable treatment based on the covered by EU equality law?”, European Law disability of ‘a child’ is prohibited. […] Reporter, 3/2008, p. 82, on p. 84). “[Whereas] However, it clearly did not mean to suggest in light of the Court’s reasoning […], it is that employees can be given less favourable probable that direct discrimination and treatment if the disabled person is not their harassment by association are […] prohibited child but “only their spouse, life partner,

Reflets no. 1/2010 A. Case law sibling or parent. Rather, any close to them, who therefore also merit protection relationship between the employee and the (Boujeka, A., op cit., p. 871). “This form of third party should suffice” (Bayreuther, F., discrimination is potentially widespread, and “Drittbezogene und hypothetische the Court’s judgment is to be welcomed for the Behinderungen”, Neue Zeitschrift für protection it confers on vulnerable Arbeitsrecht, 2008, p. 986). individuals” (Waddington, L., op. cit., p. 681). “[Coleman] however will not be the end but If the Court’s reasoning seems able to “be rather the beginning of the discussion transposed to all the other criteria prohibited surrounding discrimination by association […]. by the Directive […] 2000/78” (Cavallini, J., [As] the Coleman case might have op. cit., p. 25), the Coleman judgment is also considerable economic impacts [and as] [a]fter significant insofar as it clears up a priori any disability, the concept of discrimination by doubts that might have remained after the P. v. association will spill over into other areas of S. and Cornwall County Council judgment discrimination […], the question the Court will (judgment of 30 April 1996, C-13/94, ECR have to answer […] in future cases is whether I-2143) and the Mangold judgment (judgment […] there should be a single approach for all of 22 November 2005, C-144/04, ECR I-9981; areas of discrimination covered by Article 13 see Reflets no. 2/2007, p. 28 [only available in EC and whether the Member States should have French]) as to the existence in European a margin of appreciation in this area” Union law of a general principle of equality, (Toggenburg, G., op. cit., pp. 85 and 87). irrespective of the grounds for discrimination provided for in Article 13 EC and in secondary [PC] [AGT] [TLA] law. “[T]he ECJ followed the […] direction […] of limiting the scope of the protection E. Brief summaries […] to the suspect grounds of discrimination […]. In this sense, the ruling closes some * International Court of Justice: For the first expectations that followed Mangold that the time ever, the Hague-based International Court ECJ would be turned into a self-righteous of Justice (hereafter referred to as “the ICJ”) body destined to protect against all forms of was asked to rule on a dispute between two discriminations and achieve at the judicial State parties to the Lugano Convention of level what could not be achieved at the 16 September 1988 on jurisdiction and the national political level” (Mestre, B., enforcement of judgments in civil and “Discrimination by association: protected by commercial matters. The dispute in question is EU law but limiting the scope of Mangold”, between the main shareholders in the company European Law Reporter, 9/2008, p. 300, on p. Sabena, which is now bankrupt, and the 304). Belgian State and three companies in which Ultimately, “the Coleman judgment the Belgian State holds all the shares (hereafter undeniably represents […] a considerable referred to as “the Belgian shareholders). The contribution to the Community mechanism for Sabena shareholders involved in the dispute combating discrimination, both direct and are Swissair and its subsidiary SAirLines indirect, and harassment” (Le-Barbier-Le Bris, (hereafter referred to as “the Swiss M., op. cit., p. 884).“…[T]he criterion for shareholders”). The ICJ was asked to rule on unfavourable treatment, namely the disability, the matter because the Lugano Convention [is] trans-individualised. The individual does not contain a clause according receiving unfavourable treatment does not have competence to settle disputes to the European to be disabled himself: rather, disability is Court of Justice or to any other court. The present where the criterion of ‘disability’ is dispute relates to the refusal of the Swiss met and is present in another person” (Lindner, Federal Court, in a judgment issued on J. F., “Die Ausweitung des 30 December 2008, to recognise within the Diskriminierungsschutzes durch den EuGH”, framework of the Swiss system for the order Neue Juristische Wochenschrift, 2008, p. 2750). of priority of creditors the Belgian courts’ “Although disability is undoubtedly about decisions to intervene with regard to the Swiss individuals, i.e. those affected by it, it is also – shareholders’ civil responsibility towards the and to a greater extent – about situations and Belgian shareholders, and to its refusal to stay environments. Although disabled persons must proceedings, by virtue of Article 21 of the be at the heart of mechanisms for combating Lugano Convention until the decisions of the disability-based discrimination, it is quite clear Belgian courts are adopted. According to the that discrimination may also affect those close Belgian government, the first refusal breaches Article 1(2)(2) – the applicability of which Reflets no. 1/2010 A. Case law was never checked by the Swiss Federal Court against Torture strongly criticised the Republic – and Articles 16(5), 26(1) and 28 of the of Serbia for violating several provisions of the Lugano Convention. Belgium also claims that Convention against Torture and Other Cruel, this same refusal means that Switzerland is Inhuman or Degrading Treatment or violating the rule of general international law Punishment (Articles 16(1), 12 and 13). according to which all State authority, particularly in the judicial domain, must be The appellant, Mr Osmani, a Serbian citizen of exercised in a reasonable manner. Finally, Roma origin, claimed that he had been a victim with regard to the Swiss Federal Court’s of police brutality during the execution of an refusal to stay proceedings in the disputes eviction order. Moreover, he maintained that between the parties, which the Belgian courts he had not been able to obtain redress and had already been asked to rule on, the Belgian compensation. With regard to the legal government argued that Switzerland had definition of the treatment that the appellant violated Article 1(2)(2) and Articles 17, 21 was subjected to, the Committee held that the and 22 of the Lugano Convention and infliction of physical and mental suffering, Article 1 of Protocol no. on the uniform aggravated by the complainant’s particular interpretation of the Convention. vulnerability, due to his Roma ethnic origin and unavoidable association with a minority The proceeding is currently at the appeal stage, historically subjected to discrimination and so no there are no new developments to report prejudice, reaches the threshold of cruel, yet. inhuman or degrading treatment or punishment. International Court of Justice, Kingdom of Belgium v. Swiss Confederation, application initiating proceedings, www.icj-cij.org Communication no. 261/2005, Osmani, http://tb.ohchr.org/default.aspx [RA] * Human Rights Committee: The views [SEN] delivered on 20 July 2009 concluded that the Czech Republic had violated Article 26 of the * Special Tribunal for Lebanon: The Special International Covenant on Civil and Political Tribunal for Lebanon officially began work on Rights. In this matter, the appellants claimed 1 March 2009. Its purpose is to prosecute those that they had been victims of discrimination responsible for the attack of 14 February 2005 and argued that using citizenship as a criterion that killed former Lebanese Prime Minister for restitution of property, as under the Czech Rafiq Hariri and killed or injured other people national law no. 87/1991, violated the besides. The Tribunal, which was created Covenant. jointly by Lebanon and the UN, is the first international tribunal with the specific purpose In the case in point, the Committee reiterated of prosecuting people responsible for political the views adopted in various cases relating to crimes. the restitution of property in the Czech Republic, where it held that Article 26 had The Tribunal will a mixed composition with been violated, and that it would be the participation of Lebanese and international incompatible with the Covenant to require the judges, as well as an international prosecutor. appellants to obtain Czech citizenship as a The applicable law for the Special Tribunal is condition for the restitution of their property national and international in character. The or, alternatively, for the payment of Statute stipulates that the Special Tribunal shall appropriate compensation. Given that the apply provisions of the Lebanese Criminal appellants’ right to request the restitution of Code relating to the prosecution and their property was not based on their punishment of acts of terrorism and crimes and citizenship, the Committee concluded that the offences against life and personal integrity (excluding punishments such as the death Communication no. 1574/2007, Slezák, penalty and forced labour). The Special http://tb.ohchr.org/default.aspx Tribunal’s standards of justice, including principles of due process of law, will be based [SEN] on the highest international standards of criminal justice as applied in other * Committee against Torture: In a decision international tribunals. handed down on 8 May 2009, the Committee Reflets no. 1/2010 A. Case law www.stl-tsl.org/action/home with the principle of equal pay as interpreted by the European Court of Justice in its [SEN] judgment on the Griesmar case (judgment of 29 November 2001, C-366/99, Rec. p. I-9383). *Germany: The Bundesgerichtshof (Federal Supreme Court) decided that if a contract for a The Conseil d’État reiterated that the purpose consumer good is terminated, the seller can of the service credit of one year’s seniority per require the consumer to pay compensation for child, awarded to state employees under use of the good. Nevertheless, the Article L 12 of the Civil and Military Bundesgerichtshof pointed out that a Retirement Pensions Code, is to compensate distinction had to be made between the for any career disadvantages caused by having termination of a contract where the purchase to stop work due to birth, adoption or price must be reimbursed to the consumer and child-rearing. Since both men and women are the termination of a contract where goods not eligible for such service credits, the provisions in conformity must be replaced. Only the latter cited are not incompatible with the principle of case is covered by the European Court of equal pay for men and women as set down by Justice’s judgment in Quelle AG v. Article 141 of the Treaty establishing the Bundesverband der Verbraucherzentralen und European Union and interpreted by the Verbraucherverbände (judgment of European Court of Justice in its judgment of 17 April 2008, C-404-06, Rec. p. I-2685), in 29 November 2001. With regard to the service which the Court decided that a national legal credits, the principle of equal pay does not provision allowing sellers to require that prevent the application decree from stating that consumers pay compensation for the benefits employees must stop work for at least two gained through use of the good was not months to be eligible. The application decree compatible with Directive 1999/44/EC of the also names maternity leave as one of the European Parliament and of the Council of statutory positions granting entitlement to such 25 May 1999 (see Reflets no. 2/2009 [only service credits. Given that other forms of leave available in French]). It should be noted that are optional and mostly unpaid and that men there are currently two other cases underway cannot always take them as soon as their with regard to the admissibility of provisions children are born, the new system will mainly of German civil law in view of Directive benefit female state employees. 1999/44/EC of the European Parliament and of the Council of 25 May 1999 (C-65/09, Gebr. Conseil d'État, judgement of 11 March 2009, Weber GmbH v. Jürgen Wittmer and C-87/09, no. 296363, Vallant v. Caisse des dépôts et Ingrid Putz v. Medianess Electronics GmbH). consignations, www.legifrance.gouv.fr

Bundesgerichtshof, judgment of IA/32072-A 16 September 2009, VIII ZR 243/08 [VMD] IA/32424-A The company Temis is headquartered in [AGT] Belgium and acquired usufruct of a building in France in 1997. Since Belgium and France * France: A father has asked the director of the have signed an agreement containing an Caisse des depots et consignations administrative assistance clause (in the aim of (Consignments and Loans Fund) to revise his combating tax fraud and tax evasion), the retirement pension so that he can receive French tax authorities ordered the company to service credits for his four children. submit declarations relating to the 3% annual property tax on the building by sending out After the director of the Caisse des depots et two notices, one to the French address and one consignations rejected his request and the to the Belgian address. The latter notice was rejection was confirmed by the Grenoble not answered, so the tax authorities ordered Administrative Court, the father turned to the the company to pay the 3% property tax for Conseil d’État (Council of State) to request the the years 1998 to 2002. reversal of service credits for children. The appellant argued that Article 48 of the law of With a view to cancelling the taxation 21 August 2003 reforming the pensions system procedure, the Cour d'appel d'Aix-en Provence and Article L 12 of the Civil and Military (Aix-en-Provence Court of Appeal) argued Retirement Pensions Code are incompatible that in its judgment of 11 October 2007 (Elisa,

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C-451/05, Rec. p I-8251), the European Court causes in the protection and management of of Justice had stated that the nationality-based water resources, the Court of Appeal found exemption system violated European law as all that the environmental organisations that were companies should be allowed to prove that the plaintiffs in the first instance had been their objective is not tax evasion. The Cour de victims of a “significant violation of the joint cassation (Court of Cassation) decided that by environmental interests” that they aimed to making this ruling, the Cour d’appel was defend and that this violation constituted going against Articles 990 D and 990 E of the “non-material damage for which compensation General Tax Code. Indeed, where a legal could be awarded”. Finally, the Court entity headquartered in a state with which considerably increased the amount of France has concluded an administrative compensation to be paid to the environmental cooperation agreement or non-discrimination organisations in question. treaty is concerned, the system created by Articles 990 D and 990 E of the General Tax Cour administrative d'appel de Nantes, Code, in their applicable version, do not judgment of 1 December 2009, no. 07NT03775, contravene Article 73 B (now Article 56) of unpublished. Can be viewed on LexisNexis the Treaty establishing the European Union as and Jurisclasseur it allows companies to be exempted from the IA/32070-A 3% property tax, regardless of the circumstances, if they can submit the [VGP] declarations relating to the 3% property tax described in Article 990 E2 of the General Tax Code or if they are covered by the In a judgment handed down on 23 March 2009, commitment outlined in Article 990 E 3 of the the Cour administrative d'appel de Nancy same Code. (Nancy Administrative Court of Appeal, hereafter referred to as “the CAA”) ruled that a Cour de cassation, commercial chamber, foreign appellant living in French territory and judgment of 29 September 2009, no. 08-14538, represented by a lawyer from an EU Member www.legifrance.gouv.fr State was exempt from the requirement to take up residence within the jurisdiction of the IA/32071-A administrative court before which he or she [VMD] intends to contest the legality of an action performed by a French administrative authority.

In the case in point, a German national asked the The Cour administrative d'appel de Nantes Tribunal administratif de Strasbourg (Nantes Court of Appeal) confirmed, at appeal (Strasbourg Administrative Court) to rule on a stage, the judgment of the Tribunal request to overturn a decision by the prefect of administratif de Rennes (Rennes Bas-Rhin, according to which he would be Administrative Court), handed down on banned from driving on French territory for five 25 October 2007 (Reflets no. 1/2008, months. The court threw out his request, saying IA/30650-A [only available in French]) on the that it was clearly inadmissible since he had not spread of green algae in Brittany. taken up residence within the court’s jurisdiction, despite an application for The Court held that, given the number and regularisation. The CAA found that this order significance of the algae, France’s delays and was vitiated by an error of law “to the extent failings in implementing Council that the dispute in question was not a civil Directive 75/440 of 16 June 1975 on the dispute requiring legal representation before the required of surface water intended for the regional court in relevant area of residence by a abstraction of drinking water in the Member lawyer known to the court.... (The appellant), States and Council Directive 91/676 of who was represented by a lawyer from a 12 December 1991 on the protection of waters Member State of the European Community, from pollution caused by nitrates from acting by virtue of the combined provisions of agricultural sources constituted a “wrongful Articles 202-I of 27 November 1991 and failure” on the part of the State as regards the R 431-2 of the Code of Administrative Justice, application of these rules. Given the serious was exempt from the requirement to take up nature of the pollution in some places in residence within the jurisdiction of the court.” Brittany, and the long-term imbalance that this

Reflets no. 1/2010 A. Case law

Cour administrative d'appel de Nancy, application had violated Community law, the judgment of 23 March 2009, Blinn, Council of State reiterated the following rules: no. 08NC01725, AJDA 2009, p. 1063

IA/32319-A a) In the case of illegality on the grounds of [NRY] violation of Community law, for an In a judgment handed down on 10 November administrative act to be annulled it must be 2009, the Cour d'appel de Paris (Paris Court of contested within the relevant time frame. In such Appeal) annulled in its entirety the decision of a case, the administration concerned is obliged the Conseil de la concurrence (French to enforce the illegal act, unless it chooses to Competition Council, decision No. 06-D-04 bis eliminate it from the legal order by using its of 13 March 2006) on price-fixing in the power to withdraw it. luxury perfume industry, in which 13 perfume b) In the case of an administrative act that is manufacturers and three national retail chains non-existent or invalid (for example, where an had been ordered to pay fines of €45.4 million. administration adopts an act without having the For the first time ever, the decision was power to do so), the violation of Community overturned solely on the grounds of the law is perpetrated via a provision of national excessive duration of the proceedings; law which grants a power to the administration previous case law had consistently held that, in concerned but which is unenforceable due to its the event of proceedings lasting an excessive incompatibility with Community law. length of time, the sanction incurred by the Council’s failure to meet its obligation to issue The Council of State deemed that the case in a decision in a reasonable time was not the question fell within the illegal/annullable annulment or reopening of the proceedings but category. The violation of Community law was rather reparation of any damage incurred perpetrated directly by administrative acts. through the breach of said obligation. In the Accordingly, the deadlines having passed and case in question, the Cour d’appel held that “it the administration having decided not to has been proven that there was an irremediable, withdraw its acts, illegality can no longer be real and concrete violation of the rights of the raised at the appeal stage. defence owing to the exceeding of a reasonable length of time between the date of Consiglio di Stato, judgment of 19 May 2009, the contested behaviour and the day on which No. 3072 www.giustizia-amministrativa.it the companies knew that they would have to account for it; this violation will result in the IA/32322-A annulment, not of the investigation, which is [VBAR itself largely immune from these requirements, ] but of the prosecution and the contested * Lithuania: Questions about the spelling of decision, which failed to meet the requirements names and family names in the passports of for a fair trial.” citizens of the Republic of Lithuania, which form the subject of Case C-391/09 recently Cour d’appel de Paris, 10 November 2009, submitted to the Court, were also the subject of Pôle 5 - Chambres 5-7, No. 80 a judgment dated 6 November 2009 by the Konstitucinis Teismas (Constitutional Court of IA/32067-A the Republic of Lithuania, hereafter ‘KT’), in [THF] which the KT ruled on the interpretation of * Italy: In a judgment dated 19 May 2009, the sundry points in its ruling of 21 October 1999. Consiglio di Stato (Council of State) upheld the In the latter ruling, the KT declared that “the decision by the Tribunale Amministrativo name and family name of an individual Regionale per la Puglia (Regional must be written in the state language [in Administrative Court of Puglia) rejecting an the citizen’s passport]” and that, otherwise, action for annulment of administrative acts by “not only the constitutional principle of which a licence application for an undertakers the state language would be denied but also business was turned down on the grounds that the activity of state and local the quota for such businesses had been government institutions, that of other enterprises, establishments and reached. organisations would be disturbed”. According As regards the argument put forward that the to the ruling of 6 November 2009, these administrative decisions to refuse the licence findings do not preclude the citizen’s name

Reflets no. 1/2010 A. Case law and family name from being transcribed in www.rechtspraak.nl, LJN BJ2560 characters other than Lithuanian characters and in non-grammaticised form (omitting IA/31842-A [SJN] Lithuanian endings, for example) in the “other entries” section of his/her Lithuanian passport, where the person in question so requests and * United Kingdom: In a judgment given on his/her name and family name are already 1 December 2009, the Supreme Court was indicated in the same passport in the state required to rule on the interpretation of language. Article 12(3) of Council Regulation (EC) No. 2201/2003 concerning jurisdiction and the The KT specified that such a transcription of recognition and enforcement of judgments in the citizen’s name and family name in the matrimonial matters and the matters of “other entries” section of the Lithuanian parental responsibility, known as ‘Brussels II passport did not have the same value as the Revised’. In proceedings other than divorce entry in the state language. proceedings, the article in question provides for a prorogation of jurisdiction in favour of courts Lietuvos Respublikos Konstitucinis Teismas, of the Member State with which the child has a ruling of 6 November 2009, No. 14/98, substantial connection, on condition that the www.lrkt.lt parties have accepted said jurisdiction. The IA/31682-A Supreme Court held that, given the absence of territorial limitation in Article 12, there was [LSA] nothing to preclude it from being applied to a child residing in a third State (Pakistan, in the case in question). * Netherlands: In a case relating to the question of whether the Minister of Agriculture, Nature Supreme Court, judgment of 1 December 2009, and Food Quality had been right to decide that Re I (A Child) [2009] UKSC 10, the appellant’s animals were probably affected www.bailii.org by a zoonosis and should be eliminated, the College van Beroep voor het bedrijfsleven IA/31685-A (Trade and Industry Appeals Tribunal) ruled on [PE] the question of whether the dispute had taken place within a reasonable time, as provided for In a decision dated 18 June 2009, the Court of by Article 6 of the European Convention on Appeal ordered the first juryless criminal trial Human Rights. in England and Wales in 400 years. The four The tribunal held that the proceedings in the defendants are accused of an attempted armed case in question had lasted for eight years and robbery at London’s Heathrow Airport in 2004. one month. In its view, three years might be The decision exploits the possibility offered by a considered a reasonable time for proceedings provision that entered into force in 2006, in this instance, given that the case concerned which allows a trial to be heard by a judge the appearance of a zoonosis. Consequently, it alone if there is evidence of a real and present found that the time had been substantially danger that jury-tampering would take place exceeded. Nonetheless, given that the and where additional measures to prevent it proceedings had been suspended for three years would not fully succeed. In the case in and 10 months pending the Court of Justice’s question, three attempts to form a jury had response in two other cases, the tribunal ruled already failed, at a cost to the taxpayer of that the time had only been exceeded by one GBP 22 million. The trial opened at the High year and three months. Given that the Court of Court on 12 January 2010. Justice’s response in these cases was also important to the case in question and that the Court of Appeal (Criminal Division), judgment appellant had agreed to the suspension, the period of three years and 10 months should not of 18 June 2009, R v Twomey (John) [2009] 3 be taken into account in calculating by how All ER 1002, www.bailii.org much a reasonable time had been exceeded.

College van Beroep voor het bedrijfsleven, IA/31686-A 25 June 2009, appellant v. Minister van Landbouw, Natuur en Voedselkwaliteit Reflets no. 1/2010 A. Case law

[PE] [PE]

Following a partial rejection by the Court of Appeal, in a judgment dated 2 December 2008 (see Reflets No. 1/2009, p. 36-37 [only available in French]), of an appeal by the Barclay brothers aimed at establishing the inadequacy of constitutional reforms on the island of Sark, the Supreme Court has now also found against the billionaires. It ruled that the presence in Sark’s parliament of two unelected observers did not impair the right to regular, free and fair elections, as guaranteed by Article 3 of Protocol 1 of the European

Convention on Human Rights. Nor was a rule preventing foreigners from standing for legislative elections incompatible with the aforementioned right.

Supreme Court, judgment of 1 December 2009, R (on the application of Barclay and Others) v The Lord Chancellor and Secretary of State for Justice and Others [2009] UKSC 9, www.bailii.org

IA/31687-A

Reflets no. 1/2010 A. Case law

Notice

The texts and documents referred to in the information below are generally taken from publications found in the Court’s Library.

The references provided beneath case-law decisions (IA/..., QP/..., etc.) refer to the file numbers in the DEC.NAT. and CONVENTIONS internal databases. The files relating to these decisions can be consulted at the Research and Documentation Service.

The law reports featured in the “Extracts from legal literature” section have been selected with the utmost care. A comprehensive record of published reports can be found in the NOTES internal database.

Reflets is available on Curia (http://curia.europa.eu) under Library and documentation / Legal information of European Union interest / “Reflets”, as well as on the intranet of the Research and Documentation department.

The following administrators contributed to this edition: Ruxandra Adam [RUA], Réa Apostolidis [RA], Valentina Barone [VBAR], Pedro Cabral [PC], Patrick Embley [PE], Sarah Enright [SEN], Thierry Fouquet [THF], Anke Geppert [AGT], Valérie Giacobbo-Peyronnel [VGP], Caroline Heeren [CHEE], Sally Janssen [SUM], Miroslawa Kapko [MKAP], Thomas Laut [TLA],Valérie Montebello-Demogeot [VMD], Céline Remy [CREM], Natacha Rosemary [NRY], Lina Satkuté [LSA], Škvařilová-Pelzl [PES], Lina Tapper Brandberg [LTB] The following trainees also contributed: Sophia Harris [SOHA], Valéria Magdová [VMAG], Janek Tomasz Nowak [JTZ], Laura Peltonen [LAP].

Coordinators: Sabine Hackspiel [SAH], Carole Lavandier [CWL]

Reflets no. 1/2010